Blythe v. Hinckley

THE COURT. The Supreme Court of the United States issued a mandate to this court in. the matter of the estate of Thomas H. Blythe, deceased. That mandate recited: “And whereas in- the present term of October, in the year of our Lord one thousand eight hundred and ninety-sis, the said cause came on to be heard before the supreme court of the United States on the said transcript of record, and on motions to dismiss or to affirm, which were argued by counsel, on consideration whereof it is now here ordered and adjudged by this court that the writ of error in this cause be, and the same is hereby, dismissed for the want of jurisdiction; and that the said appellee, Florence Blythe Hinckley, recover against the said appellants fourteen dollars and seventy-five cents, for her costs herein expended, and have execution therefor, May 24, 1897. And the same is hereby remanded to you, the said judges of the said supreme court of the state of California, in order that such execution and proceedings may be had in the said cause in conformity with the judgment and decree of this court above stated, as according to right and justice/’ etc.

Upon the presentation of the aforesaid mandate to this court, it was ordered that it be filed, and that a judgment for costs, as therein specified, be entered. An additional entry was made upon the records of this court in the following words: “It is further ordered that the judgment heretofore rendered by this court on November 30, 1895, be and the same is hereby affirmed.” The attorneys of Henry T. Blythe d al. now move to strike these words from the record, upon the ground that such entry was made unadvisedly and without legal justification.

The motion made by Henry T. Blythe et al. to strike from the record the aforesaid entry must be granted. While the practice of this court in the past has in some instances been similar to that followed in the present case, still we see no reason for it, and find no authority authorizing it. The action of this court upon the presentation of a writ of mandate from the Supreme Court of the United States is limited by the direction found in that writ. In this case the mandate contains no reference to the affirmation of the “judgment heretofore rendered by this court in the matter of the estate of Blythe, deceased. In the absence [349]of such mandate it would be useless for this court to reaffirm its own judgment. Therefore the order made was not justified, and should be stricken from the record.

It is so ordered.