Newcomb v. Burbank

182 F. 954, 1910 U.S. App. LEXIS 5685

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: November 14, 1910
• Status: Published

Opinion

WARD, Circuit Judge;

The judgment in this cause having been reversed by the Circuit.Court of Appeals (181 Fed. 334), not on the merits, but on the ground that the record does not show the requisite diversity of citizenship, and the complaint and answer having been amended so as to correct the defect, the defendants now move that judgment be entered upon the verdict in their favor.

I am fully satisfied that the Circuit Court of Appeals has the power to order this to be done without granting a new trial. The material part of the mandate which I am bound to execute is in the following words:

“Ordered, adjudged, and decreed that the judgment of said Circuit Court he and hereby is reversed, without costs, and the cause remanded to that court, with directions to dismiss the eomplaint for want of jurisdiction, without costs, unless the plaintiffs within a reasonable time obtain from that court leave to amend the complaint and do amend it so as to present a cause within the jurisdiction of that court.’’

The mandate does not order a new trial. But on reversal of a judgment without more, generally speaking, a new trial follows.

The mandate being consistent with either view, I am authorized to look for further light to the opinion of the court. West v. Brashear, 14 Pet. 51, 10 L. Ed. 350. I think it shows that a new trial was intended. Noyes, C. J., said:

“As it is not certain that there will be a new trial of the cause, and as in case there is a new trial questions raised upon the assignments of error may not arise again or be presented in the same form, we do not feel that any special circumstances exist which call upon us to decide the merits of these questions or depart from the principle indicated as proper by the. Supreme Court in Robertson v. Cease, 97 U. S. 646 [24 L. Ed. 1057].”

Motion denied.