Opinion
JANUARY TERM, 1841.
A case, on a writ of error to the Southern District of Mississippi, was docketed and dismissed on the 9th of February, of the present term, upon motion of the defendant in error, under the forty-third rule of the Court; and on the 11th of February, a mandate, on a like motion, was ordered to issue to the Circuit Court, to proceed in the case; which was issued on the next day. On the 6th of March, the plaintiff in error appeared in Court by his counsel, and produced and filed with the clerk the record of the case, and moved to strike off the judgment of dismissal, and to continue the case. By the Court. The judgment of dismissal under the rule, is a judgment, nisi; and it may be stricken out at any time during the Court, upon motion; unless it appears that the omission to file the record and docket the case, at an earlier period of the Court, has been injurious to the interests of the defendant in error. The motion to reinstate addresses itself to the sound discretion of the Court; and care will always be taken in granting the rule, that no injustice is done to the opposite party. The motion was granted. Had the record in this case been filed at the time of the motion to dismiss, it is now evident, from the state of the business of the term, that the case could not have been reached and disposed of during the present session of the Court. The case of Owings v. Tiernan, 10 Peters, 24, cited.
Mr. Walker, for the plaintiff in error, stated that he had a transcript of the record in this case, duly authenticated, which he was ready to file, and to docket the case, under the rules of the Court; and he moved the Court to set aside and annul the judgment of the Court, docketing and dismissing the writ of error rendered on a prior day of this term, and also to revoke the mandate of this Court, issued and addressed to the Judges of the Circuit Court of the Southern District of Mississippi, in this cause.
The motion was opposed by Mr. Key, for the defendant in error.
IN error to the Circuit Court of the United States for the Southern District of Mississippi.
This case was docketed and dismissed on the 9th of February, of the present term, upon the motion of the defendant in error, under the forty-third rule of the Court; and upon the 11th of the same month, upon a like motion, a mandate was ordered to issue to the Circuit Court to proceed in the case, which was accordingly issued on the next day. On the 6th of March, the plaintiff in error appeared in Court by his counsel, and produced and filed with the clerk the record of the case, and moved the Court to strike out the judgment of dismissal, and to continue the case.
The judgment of dismissal under the rule above mentioned, is a judgment, nisi; and it may be stricken out at any time during the term, upon motion, unless it appears that the omission to file the record, and docket the case at an earlier period of the Court, has been injurious to the interests of the defendant in error. The motion to reinstate, addresses itself to the sound discretion of the Court; and care will always be taken in granting the rule, that no injustice is done to the opposite party.
In the case of Owings v. Tiernan's Lessee, 10 Peters, 24, the motion to dismiss, and the motion by the plaintiff in error, to docket the case, were cotemporaneous; and the Court said, that the motion of the plaintiff ought to be allowed: although in that case it appeared that the writ of error had been sued out to the preceding term of this Court.
According to this decision, the motion of the plaintiff in error must have prevailed if it had been cotemporaneous with that of the defendant; and the delay since does not appear to have operated injuriously to him, nor to have retarded, in any degree, the ultimate decision of the case. For if the record had been filed at the time of the motion to dismiss, it is now evident, from the state of the business of the term, that the case could not have been reached and disposed of during the present session of the Court. The Court, therefore, will order it to be reinstated on the docket and continued, and the mandate, which was improvidently issued, to be recalled.
On consideration of the motion, and of the arguments of counsel thereupon had, as well against, as in support of said motion, it is now here ordered and adjudged by this Court, that the judgment of this Court, docketing and dismissing, with costs, the writ of error in the above entitled cause, on Tuesday, the 9th day of February last, of the present term of this Court be, and the same is hereby declared utterly null and void; and that the mandate of this Court, directed to the Judges of the said Circuit Court in this cause be, and the same is hereby, revoked; and it is also now here further ordered that the Clerk of this Court do forthwith send to the Judges of the Circuit Court of the United States for the Southern District of Mississippi, a copy of this order of Court, under seal of this Court.