Waterman v. Lemon

13 P. 905, 3 Wash. Terr. 15, 1887 Wash. Terr. LEXIS 43

• Court: Washington Territory
• Decided: January 6, 1887
• Status: Published

Opinion

Mr. Chief Justice Greene

delivered the opinion of the court.

The main question presented on this motion to dismiss is whether the action of the District Court, by way of compliance with a mandate of this court, in a cause wherein the rights of all parties have been fully determined by a decision of this court upon which the mandate is based, is reviewable before us by appeal. We think that it is not. Under secton 478 of the Code, this court has the power to send a cause, in which it has affirmed or modified the judgment, back to the District Court, with directions to carry the affirmance or modification into effect. In such a case, the District Court becomes for that purpose the mere instrument of this court to make operative its decree. Any non-compliance with the mandate of this court is corrigible by further mandate, upon application of any party aggrieved, as in a cause whereof this court still has jurisdiction, and not by appeal. (Mackall v. Richards, 116 U. S. 45.) In an equity cause a reversal is a modification, being indeed a new decree.

Let the appeal herein be dismissed.

Turner, J., and Langford, J., concurred.