Graham, Presiding Judge,
delivered the opinion of the court:
This is an appeal by the Government from the judgment of the United States Customs Court, Third Division, in a reappraisement proceeding. The case has been before us on two former occasions, and is reported in United States v. J. H. Cottman & Co., 18 C. C. P. A. (Customs) 132, T. D. 44095, and J. H. Cottman & Co. v. United States, 20 C. C. P. A. (Customs) 344, T. D. 46114. The decisions therein fully recite the facts and history of the litigation, and it does not seem necessary here to repeat the same.
When the case was last before us, the situation was as follows: •Judge Sullivan, sitting in reappraisement, had found a foreign value for the imported goods of $3.98 a ton, that this value was less than the purchase price, and that, therefore, there was .no antidumping duty applicable. On appeal, the division held that no foreign value ■or cost of production was shown by the record, and Judge Cline, in [379]*379her opinion, suggested that the appeals “might well” have been dismissed by the trial judge.
In rendering this decision, three opinions were filed. Judge Cline wrote an opinion, expressing herself as above stated. Judge Evans concurred “in the opinion prepared by Judge Cline in the instant case, wherein she finds that cost of production should furnish the basis of comparison,” also stating:
In view, therefore, of the deficiencies in the record hereto pointed out, it is my opinion that this case should be remanded in order that the appellant may have an opportunity to supply the elements of cost of production which he failed to produce, and to enable the Government to rebut, if it can, the proof oSered in relation to such cost of production. However, inasmuch as each of my associates disagree with me concerning this disposition of the cause, I join in Judge Cline’s order.
Judge Young dissented. On October 22, 1931, judgment was entered as follows:
It is hereby ordered, adjudged, and decreed that the decision of the trial court, published in Cottman v. United States, T. D. 44581,being contrary to the weight of the evidence, is hereby reversed and the cause is remanded for further proceedings consistent with our decision herein.
On appeal, this court agreed with tbe appellate division, saying:
As a result of these considerations we arrive at the conclusion that the court below did not err in finding that neither foreign-market value nor cost of production is shown by the record, and we agree with the conclusion of Judge Cline that the appeal to reappraisement might well have been dismissed by the trial judge.
The judgment is affirmed.
Judgment was entered here accordingly, and a mandate was issued from this court to the United States Customs Court in pursuance of the statute, section 194, Judicial' Code U. S., and the rule of this court, ride XXII. The judgment of this court did not remand the cause for any further proceedings, but was one of affirmance alone.
Upon receipt of this mandate, the United States Customs Court duly recorded and entered the same on its official record. This was done on February 8, 1933.
■On October 11, 1934, attorneys for the importer filed a motion with Judge Sullivan in and by which it was moved that the trial judge enter—
decision and judgment herein (pursuant to said judgment order of October 22 1931, which was based upon the decision of the third division of this court as reported in Reappraisment Decision 2136), ordering that the above-named appeals to reappraisement be dismissed and the entered values affirmed upon the ground that the original appraisements herein were unwarranted, illegal, null, and void for the reason that there was no foreign market value as found by the appraiser, nor any legal basis for cost of production for this phosphate rock upon which a dumping duty could be based.
[380]*380On November 22, 1934, Judge Sullivan filed his decision and entered judgment dismissing the appeals to reappraisement, in harmony with the suggestion of Judge Cline of the Third Division on October 22, 1931, as hereinbefore detailed.
After the making and denial of a motion for rehearing, the importer . again appealed to the Third Division for a review of the judgment of Judge Sullivan. Thereafter, the Third Division proceeded to review the said judgment of Judge Sullivan, on its merits, and entered an order modifying the judgment of Judge Sullivan, as follows:
It is hereby ordered, adjudged, and decreed that the judgment of the court below in the cases listed in schedule A hereto attached and made a part hereof be, and the same is hereby, modified, for the reasons stated in our decision herein, and the cause is remanded with instructions to issue judgment setting aside the void appraisements made under the Antidumping Act of 1921, and dismissing the appeals so far as they refer to nonexistent appraisements under the Tariff Act of 1922.
. The Government brings the case here on appeal.
In this court, the appellee has moved to dismiss the appeal on the ground that no question of law is here involved. The theory upon which this motion is urged is that the decision of the Third Division appealed from here was simply explanatory of its former decision and judgment. ■ In our opinion, this motion is without merit, in view of what we shall hereinafter state, and it is denied.
When this court entered judgment of affirmance of the judgment of the Third Division entered October 22,1931, and issued its mandate in pursuance thereof, that judgment was final and conclusive upon the Appellate Division of the United States Customs Court. Section 198, Judicial Code. That court had, thereafter, no jurisdiction or authority in the matter, except to carry out its judgment which had been affirmed; in other words, to execute the mandate of this court. It is elementary that upon affirmance of a judgment or decree of an inferior court by its appellate court, nothing remains for the inferior court to do but to execute the judgment or mandate. Chaires, Ex’r. v. United States, 3 How. 610; Durant v. Essex Co., 101 U. S. 565; Gaines v. Rugg, 148 U. S. 228; Litchfield v. Railroad Co., 7 Wall. 270. The law is well expressed in Ex parte The Union Steamboat Company, 178 U. S. 317, 318:
The duty of an inferior court upon receiving the mandate of this court is nowhere better described than by Mr. Justice Baldwin in an early case upon that subject, Ex parte Sibbald v. United States, 12 Pet. 488, 492: “Whatever”, said he, “was before the court, and is disposed of, is considered as finally settled. The inferior court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate. They cannot vary it or examine it for any other purpose than execution; or give any other or further relief; or review it upon any matter decided on appeal for error apparent; or intermeddle with it, further than to settle so much as has been remanded * *
[381]
Free access — add to your briefcase to read the full text and ask questions with AI
Graham, Presiding Judge,
delivered the opinion of the court:
This is an appeal by the Government from the judgment of the United States Customs Court, Third Division, in a reappraisement proceeding. The case has been before us on two former occasions, and is reported in United States v. J. H. Cottman & Co., 18 C. C. P. A. (Customs) 132, T. D. 44095, and J. H. Cottman & Co. v. United States, 20 C. C. P. A. (Customs) 344, T. D. 46114. The decisions therein fully recite the facts and history of the litigation, and it does not seem necessary here to repeat the same.
When the case was last before us, the situation was as follows: •Judge Sullivan, sitting in reappraisement, had found a foreign value for the imported goods of $3.98 a ton, that this value was less than the purchase price, and that, therefore, there was .no antidumping duty applicable. On appeal, the division held that no foreign value ■or cost of production was shown by the record, and Judge Cline, in [379]*379her opinion, suggested that the appeals “might well” have been dismissed by the trial judge.
In rendering this decision, three opinions were filed. Judge Cline wrote an opinion, expressing herself as above stated. Judge Evans concurred “in the opinion prepared by Judge Cline in the instant case, wherein she finds that cost of production should furnish the basis of comparison,” also stating:
In view, therefore, of the deficiencies in the record hereto pointed out, it is my opinion that this case should be remanded in order that the appellant may have an opportunity to supply the elements of cost of production which he failed to produce, and to enable the Government to rebut, if it can, the proof oSered in relation to such cost of production. However, inasmuch as each of my associates disagree with me concerning this disposition of the cause, I join in Judge Cline’s order.
Judge Young dissented. On October 22, 1931, judgment was entered as follows:
It is hereby ordered, adjudged, and decreed that the decision of the trial court, published in Cottman v. United States, T. D. 44581,being contrary to the weight of the evidence, is hereby reversed and the cause is remanded for further proceedings consistent with our decision herein.
On appeal, this court agreed with tbe appellate division, saying:
As a result of these considerations we arrive at the conclusion that the court below did not err in finding that neither foreign-market value nor cost of production is shown by the record, and we agree with the conclusion of Judge Cline that the appeal to reappraisement might well have been dismissed by the trial judge.
The judgment is affirmed.
Judgment was entered here accordingly, and a mandate was issued from this court to the United States Customs Court in pursuance of the statute, section 194, Judicial' Code U. S., and the rule of this court, ride XXII. The judgment of this court did not remand the cause for any further proceedings, but was one of affirmance alone.
Upon receipt of this mandate, the United States Customs Court duly recorded and entered the same on its official record. This was done on February 8, 1933.
■On October 11, 1934, attorneys for the importer filed a motion with Judge Sullivan in and by which it was moved that the trial judge enter—
decision and judgment herein (pursuant to said judgment order of October 22 1931, which was based upon the decision of the third division of this court as reported in Reappraisment Decision 2136), ordering that the above-named appeals to reappraisement be dismissed and the entered values affirmed upon the ground that the original appraisements herein were unwarranted, illegal, null, and void for the reason that there was no foreign market value as found by the appraiser, nor any legal basis for cost of production for this phosphate rock upon which a dumping duty could be based.
[380]*380On November 22, 1934, Judge Sullivan filed his decision and entered judgment dismissing the appeals to reappraisement, in harmony with the suggestion of Judge Cline of the Third Division on October 22, 1931, as hereinbefore detailed.
After the making and denial of a motion for rehearing, the importer . again appealed to the Third Division for a review of the judgment of Judge Sullivan. Thereafter, the Third Division proceeded to review the said judgment of Judge Sullivan, on its merits, and entered an order modifying the judgment of Judge Sullivan, as follows:
It is hereby ordered, adjudged, and decreed that the judgment of the court below in the cases listed in schedule A hereto attached and made a part hereof be, and the same is hereby, modified, for the reasons stated in our decision herein, and the cause is remanded with instructions to issue judgment setting aside the void appraisements made under the Antidumping Act of 1921, and dismissing the appeals so far as they refer to nonexistent appraisements under the Tariff Act of 1922.
. The Government brings the case here on appeal.
In this court, the appellee has moved to dismiss the appeal on the ground that no question of law is here involved. The theory upon which this motion is urged is that the decision of the Third Division appealed from here was simply explanatory of its former decision and judgment. ■ In our opinion, this motion is without merit, in view of what we shall hereinafter state, and it is denied.
When this court entered judgment of affirmance of the judgment of the Third Division entered October 22,1931, and issued its mandate in pursuance thereof, that judgment was final and conclusive upon the Appellate Division of the United States Customs Court. Section 198, Judicial Code. That court had, thereafter, no jurisdiction or authority in the matter, except to carry out its judgment which had been affirmed; in other words, to execute the mandate of this court. It is elementary that upon affirmance of a judgment or decree of an inferior court by its appellate court, nothing remains for the inferior court to do but to execute the judgment or mandate. Chaires, Ex’r. v. United States, 3 How. 610; Durant v. Essex Co., 101 U. S. 565; Gaines v. Rugg, 148 U. S. 228; Litchfield v. Railroad Co., 7 Wall. 270. The law is well expressed in Ex parte The Union Steamboat Company, 178 U. S. 317, 318:
The duty of an inferior court upon receiving the mandate of this court is nowhere better described than by Mr. Justice Baldwin in an early case upon that subject, Ex parte Sibbald v. United States, 12 Pet. 488, 492: “Whatever”, said he, “was before the court, and is disposed of, is considered as finally settled. The inferior court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate. They cannot vary it or examine it for any other purpose than execution; or give any other or further relief; or review it upon any matter decided on appeal for error apparent; or intermeddle with it, further than to settle so much as has been remanded * *
[381]*381If, after this court had issued its mandate and the same had been received' and recorded by the Appellate Division, and the cause had been duly remanded to Judge Sullivan for final disposition in accordance with the said judgment of the Appellate Division rendered October 22, 1931, the trial judge had not proceeded in conformity with said order of the Third Division, such failure so to proceed might have been corrected by the division on appeal, or, perhaps, otherwise. The record discloses, however, that Judge Sullivan proceeded in accordance with said judgment and mandate, and his judgment should have been affirmed or the appeal therefrom have been dismissed.
When the matter last came to us on appeal from the order of the Third Division, this court considered the case upon the theory that the division had disposed of the case upon the basis of an ultimate dismissal of the appeals by the trial judge. While Judge Evans did have a different theory, he did, as we view it from the language of his concurring opinion hereinbefore quoted, finally agree with such a disposition. Judge Young also expressed his view in his dissenting opinion that this was to be the procedure, for he said in part:
It seems to me pretty hard on the citizen litigating with his Government, after the local appraiser has made a dumping duty finding expressly based on foreign market value, to have four trials in each of which the court either found a foreign market (three times in his favor) or remanded the case solely for the admission of evidence held to bear upon the foreign market value, and then at the fifth trial (the second before this Division) be faced with a remand directing a dismissal of his case before the single judge, to whom it is again remanded, upon the theory that no foreign value was established by the evidence. The legal effect of what they do by thus remanding it to be dismissed affirms and makes legally binding the local appraiser’s finding confessedly based on the legal existence of a foreign market.
On appeal, we considered the case upon that basis, and expressly stated that we approved of such disposition as was indicated in Judge Cline’s opinion, and which we interpreted to mean a dismissal of the appeals. This having been done, it is our view that the division should not have thereafter reconsidered the same facts and remanded the case to the trial judge with directions to find the appraisements to be null and void upon a theory not theretofore apparently considered by the division in this case and certainly not considered by this court on appeal when the case was list here.
Although a majority of the members of this court do not concur in the reasons given herein, a majority of the court does agree that the judgment of the Appellate Division should be reversed and the cause remanded to the division with instructions to affirm the judgment of the trial court dismissing the appeals to reappraisement. This will be the order.
Bland, Judge, concurs in the foregoing opinion.