107 US 629 Schell v. Dodge Barney

107 U.S. 629

2 S.Ct. 830

27 L.Ed. 601

SCHELL, late Collector, etc.,
DODGE and others.
BARNEY, late Collector, etc.,
ISLER and others.
BARNEY, late Collector, etc.,
BARNEY, late Collector, etc.,
FRIEDMAN and others.

May 7, 1883.

Sol. Gen. Phillips, for plaintiffs in error.

John E. Parsons and Geo. Bliss, for defendants in error.


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These are all suits in each of which a judgment was rendered against a late collector of customs for the recovery of money paid as duties. There has been a certificate of probable cause in each. Writs of error to this court were brought by direction of the government in each case. When the cases were reached in order on the docket of this court at October term, 1881, the solicitor general, on the part of the government, moved that the writs of error be dismissed, as presenting no question which he desired to argue. This was done. There was no affirmance of the judgments below, and the judgments and mandates of this court contained no direction as to interest on the judgments below during the time the writs of error were pending. Those judgments were rendered in 1878, and suspended by the writs of error for over three years. In the Dodge case the mandate was issued, but has never been presented to the court below. In the other cases, the mandates were issued and presented to the court below, and orders for judgment were entered thereon. Counsel for the defendants in error in the Dodge case were present in this court when that case was so dismissed, but in the other cases no counsel for the defendants in error was present, and the motions to dismiss were made without their knowledge, and the mandates were not issued till after the close of the term.


The defendants in error now apply to this court to correct the judgments and mandates in these cases so as to award to them interest as such or as damages for delay. There is no doubt that, if the defendants in error in these cases had in season asked for judgments of affirmance, their applications would have been granted, and interest would have been allowed, in accordance with the decision just announced in Cochran v. Schell, ante, 827. But the difficulty now is that we have no power to vary the judgments or the mandates after the close of the term, no especial right to do so in these cases having been reserved. It has always been held by this court that it has no power, after the term has passed, and a cause has been dismissed or otherwise finally disposed of here, to alter its judgment in such a particular as that now asked for, the change of a dismissal of a writ of error, with its legal consequences, to an affirmance of the judgment below, with its legal consequences, and not an error of mere form, or a clerical error, or a misprision of the clerk, or the like. Jackson v. Ashton, 10 Pet. 480; Bank U. S. v. Moss, 6 How. 31, 38.


The applications are denied.