tion with another case, 31 and further proof,32 except in so far reversed, the court below may enter judgment overruling the demurrer, and allow the defendant to answer. U. S. v. Boyd, 15 Pet. 187, 10 L. ed. 706. Under such a direction, the court denied a motion by the plaintiff for a dismissal without prejudice and ordered an absolute dismissal. U. S. v. Lehigh Valley R. Co., 176 Fed. 1015; Hawkins v. Cleveland, C., C. & St. L. Ry. Co., C. C. A., 99 Fed. 322. It was held: that the trial court might correct an error in computing the amount of the judgment; and that a party, whose attorney had induced the mistake, was estopped from objecting that the expiration of the term had deprived the court of jurisdiction to correct the error. Ex parte Marks, C. C. A., 136 Fed. 168. The better practice in such a case is to procure a modification of the mandate so as to affirm the judgment without prejudice to reopening the case for the single purpose of correcting such an error if the lower court so permits. Where the mandate reverses a decree for an injunction and authorizes further proceedings, the District Court may determine the liability of the complainant upon the injunction bond. Arkadelphia Milling Co. V. St. Louis Southwestern Ry. Co., 249 U. S. 134, 39 Sup. Ct. 237, 63 L. ed. 517. In such a case where the District Court had in its former decree vacated the injunction bond, released the sureties and retained jurisdiction for the purpose of making such further orders as might became necessary; it was permitted to set aside so much of such decree as gave the release, irrespective of the question whether the former mandate had directed its reversal. Ibid. It has been said that where there is a reversal the case is thereupon taken up in the court below at the point where the erroneous judgment was entered. Exchange Mutual Life Ins. Co. v. WarsawWilkinson Co., C. C. A., 185 Fed. 487. The directions as to the further proceedings in the District Court, which are contained in a mandate addressed to the Circuit Court of Appeals, should be communicated to the District Court by the Court of Appeals, and do not authorize the latter court to exercise any further jurisdiction concerning them. Ex parte First National Bank of Chicago, 207 U. S. 61, 52 L. ed. 103. But where the Supreme Court stated, in its opinion, but one ground of reversal, the District Court is bound to follow the opinion of the Circuit Court of Appeals in the case. Hill v. Mutual Life Ins. Co., 113 Fed. 44. 31 Booth v. U. S., C. C. A., 154 Fed. 836. 32 C. & A. Potts & Co. v. Creager, 71 Fed. 574. The District Court may then exercise its own judgment upon questions of law not considered by the court of review. Schneider Granite Company v, Gast Realty & Investment Co., 245 U. S., 288; Arkadelphia Co. v. St. Louis S. W. Ry. Co., 249 U. S. 134. Where, upon the dismissal, the case was remanded for such further proceedings as ‘ ́according to right and justice and the laws of the United States ought to be had; "it was held that, upon the filing of such mandate, the court below had the power to act upon a mo as the opinion or mandate specifically forbids. Although the mandate contains no direction for a new trial, it seems that a new trial may be ordered when there is a provision for a procedendo.83 The mandate must be interpreted according to its subject-matter, and the decree of the court below as well as that of the appellate court may be taken into consideration in the interpretation thereof.3 34 § 712a. Enforcement of mandate. Neither the Supreme Court nor the Circuit Court of Appeals has the power to issue execution on appeal from or error to the judgment or decree of a Federal court.1 Where the inferior court of the United States refuses to obey the mandate of the Supreme Court or of the Circuit Court of Appeals, the court of review may compel a compliance by a mandamus or other appropriate writ. Upon the return to the application for a mandamus, the court, if it has the whole record tion in abatement. U. S. v. Dunne, C. C. A., 173 Fed. 254. Where an appeal had been dismissed, and the mandate directed the court below to take such proceedings as might be according to right and justice, the said appeal notwithstanding, such court proceeded as if no appeal had been taken, and the time for an appeal specified in the decree had expired, The Sydney, 47 Fed. 260. 33 Steinman v. U. S., C. C. A., 185 Fed. 47; Western Bank Note & Engraving Co. v. Slentz, C. C. A., 188 Fed. 57. The plaintiff may take a voluntary non-suit when otherwise entitled thereto, although the Circuit Court of Appeals has ruled that a verdict for the defendant should have been directed upon the evidence in the record. Cybur Lumber Co. v. Erkhart, C. C. A., 247 Fed. 284. Upon a new trial, directed by the court of review, the trial court may direct judgment upon the pleadings. Dodge v. U. S., C. C. A., 131 Fed. 849. 34 Mitchell v. U. S., 15 Pet. 52, 10 L. ed. 658; Story v. Livingston, 13 Pet. 359, 10 L. ed. 200; Mackall v. Richards, 116 U. S. 45, 29 L. ed. 558. § 712a. 1 U. S. R. S., § 701, 26 St. at L. 826, §§ 10, 11. 2 Sibbald v. U. S., 12 Pet. 488, 9 L. ed. 1167; Gaines v. Rugg, 148 U. S. 228, 37 L. ed. 432; City Bank of Fort Worth v. Hunter, 152 U. S. 512, 38 L. ed. 534; supra, § 457; No. Al. Dev. Co. v. Orman, C. C. A., 71 Fed. 764; L. Bucki & Son Lumber Co. v. Atlantic Lumber Co., C. C. A., 128 Fed. 332. But see Re Humes, 149 U. S. 192, 37 L. ed. 698; infra, § 713. The writ may be addressed to a Circuit Court of Appeals if that has issued a mandamus to the District Court giving erroneous instructions concerning obedience to the mandate of the Supreme Court. Ex parte First National Bank of Chicago, 207 U. S. 61, 52 L. ed. 103; reversing s. c., C. C. A., 146 Fed. 742. before it, may treat the proceeding as if it were taken on a writ of error and decide the whole case without compelling a second writ of error; or the error may be corrected by a second appeal or writ of error. Where a State court refuses to obey the mandate of the Supreme Court of the United States, the Supreme Court has power to award execution in the case.5 3 L. Bucki & Son Lumber Co. v. Atlantic Lumber Co., C. C. A., 128 Fed. 332. 4 Rogers v. Durant, 106 U. S. 644, 27 L. ed. 303; Nashua & L. Corp. v. Boston & L. R. Corp., 51 Fed. 929, 931. This is the more usual remedy; infra, § 713. 5 U. S. R. S., § 709. The practice is, when a State court refuses to obey the mandate of the Supreme Court of the United States, to sue out a second writ of error. Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97; Roberts v. Cooper, 20 How. 647, 15 L. ed. 969; Tyler v. Magwire, 17. Wall. 253, 21 L. ed. 576. Where the trial court, after a reversal, construed the statute in accordance with the opinion of the Supreme Court of the United States, there was no reversal because the remittitur from the State court, to which the mandate was sent, did not specifically direct that further proceedings be had in accordance with such opinion. Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 220 U. S. 590, 55 L. ed. 596. Upon such second writ of error, when the cause has been remanded after final judgment, nothing is brought up for review except the proceedings of the State court subsequent to the mandate. Sizer v. Many, 16 How. 98, 14 L. ed. 861; Corning v. Troy I. & N. Factory, 15 How. 451, 466, 14 L. ed. 768, 774; Himely v. Rose, 5 Cranch, 513, 3 L. ed. 111; Martin v. Hunter, 1 Wheat. Wil 304, 355, 4 L. ed. 97, 110; Roberts v. Cooper, 20 How. 467, 15 L. ed. 969; Tyler v. Magwire, 17 Wall. 253, 284, 21 L. ed. 576, 583. In one case, upon such a second writ to a State court, the Supreme Court entered a final decree, and issued a writ of possession to carry the same into effect. Tyler v. Magwire, 17 Wall. 253, 292, 21 L. ed. 576, 586. In another such case, without a second writ of error, it recalled its mandate, entered judgment, and awarded execution. liams v. Bruffy, 102 U. S. 248, 26 L. ed. 135. The Supreme Court denied a motion that it should take action to cause the judgment of a State court to be reversed in accordance with a mandate of the Supreme Court previously issued, directing such reversal; where the petition alleged that the petitioner had placed the mandate in the hands of the presiding justice of the highest court of the State, and prayed that such proceedings might be taken as would cause the judgment of the inferior State court to be reversed, and that the highest court of the State had taken no action in the matter, and the judgment of the inferior court remained in full force and unreversed; but there were no other allegations showing that the petitioner had ever applied to the highest court of a State to carry the mandate of the Supreme Court into effect. In re Royall, 125 U. S. 696, 31 L. ed. 855. § 713. Second writ of error or appeal. A second appeal or writ of error may be taken when the first appeal or writ of error has been dismissed for a defect in form or failure to perfect the same, and the original time to appeal or bring error has not expired. After a decision upon an appeal or a writ of error, a second appeal or writ of error will lie to bring up proceedings subsequent to the mandate, and not settled by the terms of the mandate itself. After the final decree or judgment of the court below upon the mandate of an appellate court, the proceedings may be reviewed by appeal or writ of error in case it is claimed that the mandate has not been obeyed. When a mandate has been sent down upon a prior writ of error or appeal, no second appeal or writ of error can be allowed, until the court below has made its final judgment or decree in the case. A second appeal or writ of error will be dismissed if it appears that the decree below was entered in exact accordance with the mandate, and that no subsequent proceedings have been taken, although the propriety of the taxation of costs, as be § 713. 1 Yeaton v. Lenox, 8 Pet. 123, 8 L. ed. 889; Edmondson v. Bloomshire, 7 Wall. 306, 19 L. ed. 91; The Virginia v. West, 19 How. 182, 15 L. ed. 594; The Palmyra, 12 Wheat. 1, 6 L. ed. 531, supra, § 699. When a writ of error has been dismissed, because the Supreme Court decided that on the record before it the value of the matter in dispute was less than the jurisdictional amount, a second writ of error on further proof of value is not a writ of right. Red River Cattle Co. v. Needham, 47 Fed. 358. A decision of the Supreme Court upon a certificate of division of opinion, under the former practice, did not preclude a subsequent writ of error to the final judgment below. Ogle v. Lee, 2 Cranch, 33, 2 L. ed. 199. 2 Hinckley v. Morton, 103 U. S. 764, 26 L. ed. 458; Mackall v. Richards, 112 U. S. 369, 28 L. ed. 737; Alaska-Treadwell Gold Min. Co. v. Cheney, C. C. A., 148 Fed. 808; Grotty v. Chicago Great Western Ry. Co., C. C. A., 169 Fed. 593; Beiseker v. Moore, C. C. A., 174 Fed. 368; Williams v. Am. Ass'n, C. C. A., 197 Fed. 500. See U. S. v. Carter, C. C. A., 102 Fed. 311; Great Northern Ry. Co. v. Western Union Tel. Co., C. C. A., 174 Fed. 321. 3 Perkins v. Fournquet, 14 How. 328, 14 L. ed. 441; Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97; Roberts v. Cooper, 20 How. 467, 15 L. ed. 969; Cook v. Burnley, 11 Wall. 659, 20 L. ed. 29; Tyler v. Magwire, 17 Wall. 253, 21 L. ed. 576; Great Northern Ry. Co. v. Western Union Tel. Co., C. C. A., 174 Fed. 321. 4 U. S. v. Fossatt, 21 How. 445, 16 L. ed. 186; U. S. v. Fremont, 18 How. 30, 15 L. ed. 302. 5 Mackall v. Richards, 116 U. S. 45, 29 L. ed. 558; Stewart v. Salamon, 97 U. S. 361, 24 L. ed. 1044; Humphrey v. Baker, 103 U. S. 736, tween party and party, is sought to be reviewed. Upon a second writ of error or appeal by the same party,7 subsequent to a mandate, no inquiry into the merits of the original judg ment or decree, nor into any question before the appellate court. on the first writ of error or appeal, can be considered. 26 L. ed. 456. See Walden v. Bodley's Heirs, 9 How. 34, 48, 13 L. ed. 36, 41; U. S. v. N. Y. Indians, 173 U. S. 464, 43 L. ed. 769; Tyler v. Last Chance Mine, C. C. A., 97 Fed. 394; Re Pike, C. C. A., 76 Fed. 400; Gregory v. Pike, C. C. A., 77 Fed. 241; Minnesota Moline Plow Co. v. Dowagiac Mfg. Co., C. C. A., 128 Fed. 746; Wright v. Gorman-Wright Co., C. C. A., 152 Fed. 408; Singer Mfg. Co. v. Adams, C. C. A., 185 Fed. 768. Even when the mandate was from the Circuit Court of Appeals and the case is one in which an appeal lies from the decision of that court to the Supreme Court. Merrill v. National Bank, C. C. A., 78 Fed. 208; s. c. 173 U. S. 131, 43 L. D. 640. A Circuit Court of Appeals cannot ordinarily review the proceedings in a District Court in obedience to the mandate of the Supreme Court. Texas & Pac. Ry. Co. v. Anderson, 149 U. S. 237, 37 L. ed. 717. A recall of the mandate sent by the Circuit Court of Appeals to the District Court is not required as a prerequisite condition or in aid of an appeal to the Supreme Court in a case where the decision of the Circuit Court of Appeals is not final; since the transcript of the record remains in the Circuit Court of Appeals. Ritter v. Mutual L. I. Co., C. C. A., 72 Fed. 567. Cf. Merrill v. Nat. Bank of Jacksonville, 173 U. S. 131, 43 L. ed. 640; s. c. as Merrill v. First Nat. Bank, C. C. A., 75 Fed. 148. Upon 6 Wright v. Gorman-Wright Co., C. C. A., 152 Fed. 408. 7 Upon a second writ of error or appeal, taken by another party, the rulings upon the first trial may be reviewed, notwithstanding the fact that judgment was directed against him in the mandate upon the first writ of error or appeal. Guarantee Co. v. Phoenix Ins. Co., C. C. A., 124 Fed. 170. 8 Cook v. Burnley, 11 Wall. 659, 20 L. ed. 29; The Santa Maria, 10 Wheat. 431, 6 L. ed. 359; Washington Br. Co. v. Stewart, 3 How. 413, 11 L. ed. 658; Sizer v. Many, 16 How. 98, 14 L. ed. 861; Roberts v. Cooper, 20 How. 467, 15 L. ed. 969; Tyler v. Magwire, 17 Wall. 253, 21 L. ed. 576; Supervisors v. Kennicott, 94 U. S. 498, 24 L. ed. 260; The Lady Pike, 96 U. S. 461, 24 L. ed. 672; Ames v. Quimby, 106 U. S. 342, 27 L. ed. 100; Clark v. Keith, id. 464, 27 L. ed. 302; U. S. v. The Nuestra Senora De Regla, 108 U. S. 92, 27 L. ed. 662; Chaffin v. Taylor, 116 U. S. 567, 29 L. ed. 727. Upon a second appeal in a prize cause, no interest can be decreed which was not claimed upon the original hearing or upon the original appeal. Thompson v. Maxwell L. G. & Ry. Co., 168 U. S. 451, 42 L. ed. 539; Ala. G. S. R. Co. v. Carroll, C. C. A., 84 Fed. 772; The Santa Maria, 10 Wheat. 431, 6 L. ed. 359. |