Legg v. Overbagh

4 Wend. 188

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: April 15, 1830
• Status: Published

Opinions

On the next day the following opinions were delivered:

By Chief Justice Savage.

When a remittitur has regularly issued, and the proceedings have been sent down to the court below, this court has no longer any control over the cause; the court below has become re-possessed of it, and the jurisdiction of this court over it has ceased. It is otherwise when the remittitur has issued irregularly. When issued irregularly, in contemplation of law, the proceedings remain here, and the order or decree made will of cohrSe be superseded; the remittitur issued not being considered the act of the court. Here, however, it was the act of the court. The appellants not having appeared to argue, the decree appealed from was affirmed in pursuance of the rules of the court, and the remittitur regularly issued. If, under these circumstances, this cause can be re-called, then a cause which has been remitted to the court below may be reinstated in this court after argument and decision, which it is presumed will not be pretended. The proceedings brought up by the appeal have been remitted to the court of chancery, and remain in that court; they are no longer here, and it is not competent to this court to make any order on the subject. There is nothing in the objection that the remittitur irregularly issued ; the costs of affirmance need not be inserted in the remittitur previous to its being sent down. The absence of the appellants is satisfactorily accounted for, and had the court the power, the motion ought to be granted; but they no longer possess jurisdiction of the cause, and cannot make any order respecting it.