Statement of the Case.

aside and vacate the judgment entered on June 12, 1891, pursuant to the mandate and opinion of the Supreme Court of the United States, and to grant the defendants a new trial, as of course, and simply upon the payment of costs, as provided in the statutes of Illinois relating to the practice in actions of ejectment. The court being advised, it was ordered that the question be certified to the Supreme Court of the United States, pursuant to the sixth section of the act establishing Circuit Courts of Appeals. 26 Stat. 828, c. 517.

On the hearing in the Circuit Court of Appeals the Circuit Judge did not sit, but the court which made the order was held by the Circuit Justice and the District Judge for the Northern District of Illinois, who had been assigned to sit as a member of that court. Upon this certificate the case is now before this court for hearing.

The provisions of the law of Illinois relating to ejectment are contained in sections 34 and 35 of chapter 45 of the Revised Statutes of that State. They are as follows:

"§ 34. Every judgment in the action of ejectment shall be conclusive, as to the title established in such action, upon the party against whom the same is rendered, and against all parties claiming from, through or under such party, by title accruing after the commencement of such action, subject to the exceptions hereinafter named.

"§ 35. At any time within one year after a judgment, either upon default or verdict in the action of ejectment, the party against whom it is rendered, his heirs or assigns, upon the payment of all costs recovered therein, shall be entitled to have the judgment vacated, and a new trial granted in the cause. If the costs are paid and the motion therefor is filed in vacation, upon notice thereof being given to the adverse party or his agent or attorney, or the officer having any writ issued upon such judgment, all further proceedings shall be stayed till otherwise ordered by the court. The court, upon subsequent application, made within one year after the rendering of the second judgment in said cause, if satisfied that justice will thereby be promoted, and the rights of the parties more satisfactorily ascertained and established, may vacate the judg

Argument for Mitchell.

ment and grant another new trial; but not more than two new trials shall be granted to the same party under this section."

Mr. William C. Goudy for Smale and others. Mr. John I. Bennett was with him on the brief.

Mr. S. S. Gregory for Mitchell. Mr. William M. Booth and Mr. James S. Harlan were on his brief.

The question to be determined is whether a judgment entered on a mandate reversing a judgment of a Circuit Court and directing a contrary judgment in conformity with the opinion of this court, is a judgment of that court on "default or verdict" within the meaning of the Illinois statute. We contend that that statute refers only to a judgment entered on a default, or trial by the trial court, and not to a judgment on mandate, which is virtually the judgment of this court.

The power of the Supreme Court in reviewing judgments of inferior courts is, in some respects, defined in section 701 of the Revised Statutes. This court does not enter judgments and issue execution as is done in courts of last resort in some of the States, but, having decided the case, remands it to the court below, with directions to enter the appropriate judgment there. When judgment has been entered in accordance with such direction of this court, it becomes in substance and effect the judgment, not of the court to which the case was remanded, but of this court, and as such it is not subject to be superseded or controlled in any way by the court below. Stewart v. Salamon, 97 U. S. 361; Humphrey v. Baker, 103 U. S. 736.

This view was taken under the judiciary act of 1789, 1 Stat. 73, c. 20. Ex parte Sibbald, 12 Pet. 488. Section 24 of that act is as follows: "And be it further enacted, That when a judgment or decree shall be reversed in a Circuit Court, such court shall proceed to render such judgment or pass such decree as the District Court should have rendered or passed; and the Supreme Court shall do the same on reversals therein, except where the reversal is in favor of the plaintiff or petitioner in the original suit, and the damages to be assessed or

Argument for Mitchell.

matter to be decreed are uncertain, in which case they shall remand the cause for a final decision. And the Supreme Court shall not issue execution in causes that are removed before them by writs of error, but shall send a special mandate to the Circuit Court to award execution thereupon."

This section might seem to contemplate that this court should render, except in special cases indicated, the appropriate judgment, and, therefore, when this court, instead of entering judgment, sent back a case under that act to the court below for the entry of judgment, it might be argued with much more plausibility than it can be under the section of the Revised Statutes referred to, that the judgment so entered was the judgment of the court below, and not of this court.

But the contrary has been held, as indicated in the case cited, and in a later case, where it may fairly be said the question. now before the court was decided adversely to the contention of the plaintiffs in error. Ex parte Dubuque & Pacific Railroad, 1 Wall. 69.

This case cannot be distinguished from the one now before this court upon the ground that the Illinois statute permits a new trial as matter of right, whereas, by the Iowa statute, then construed by this court, such new trial is allowed, without cause, only in the discretion of the court. For in that case this court held expressly that the trial court was wholly without power to act upon the judgment of this court, and that the statute applied only to judgments of the trial court. And so, it was held by Judge Wallace, that the Circuit Court cannot entertain a motion for a new trial upon the ground of newly discovered evidence, after mandate from this court, directing final judgment for the plaintiff. John Hancock Ins. Co. v. Manning, 7 Fed. Rep. 299.

The judgment entered in pursuance of the mandate of this court is not in any ordinary sense the judgment of the court which enters it, but is in substance the judgment of the Supreme Court, and not subject to the ordinary incidents of a judgment entered in the trial court.

The authorities are plain that a judgment of this court, or other court of last resort, is an adjudication conclusive and

Opinion of the Court.

binding in that case, whenever it is again presented to the court on substantially the same record. Dodge v. Gaylord, 53 Indiana, 365; Smyth v. Neff, 123 Illinois, 310; Union National Bank v. International Bank, 123 Illinois, 510; Corning v. Troy Factory, 15 How. 451; Sizer v. Many, 16 How. 98; Roberts v. Cooper, 20 How. 467.

On the 1st day of February, 1886, the original judgment was rendered in the case, and that judgment was against the defendants- the plaintiffs in error here-and therefore the very moment that judgment was rendered their case was ready for the exercise of their right to have the same vacated, and a new trial as a matter of right.

They have no right whatever to have a new trial as to this part of the land in controversy. Their first application for such new trial was made June 13, 1891, more than five years after the first judgment against them for this tract was rendered. It is true, in the interval, that judgment was reversed by this court, and another judgment entered against them for all the lands in suit.

But it would be a hardship to impose upon a plaintiff the retrial of a case as to land awarded to him in the court below as a penalty for having successfully prosecuted a writ of error in this court to reverse that judgment as to other lands.

Mr. William Prescott filed a brief for Mitchell.

Mr. Thomas Dent, by leave of court, filed a brief for Gertrude Hardin, plaintiff in Hardin v. Jordan, 140 U. S. 371, who was interested in the question in this case.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

The contention of the plaintiffs in error, the defendants below, is that the mandate of the Supreme Court was fully obeyed when, in pursuance thereof, judgment was entered in the Circuit Court, and that they have the same right after the entry of that judgment to a new trial, according to the pro

Opinion of the Court.

visions of the statute of Illinois, which they would have had if the Circuit Court had on the trial, in the first instance, rendered such judgment. On the other hand, the contention of the defendant in error, the plaintiff below, is that the judgment entered by direction of the Supreme Court of the United States is final, and that the right to a second trial given by the statutes of Illinois to the losing party in ejectment does not apply where the judgment against such party is entered by direction of that court.

It is insisted at the outset that the statute of Illinois confers a right to a new trial in ejectment only when the judgment is rendered upon default or verdict, and does not apply to cases where it is entered upon the mandate of an appellate court, the latter judgment not being within its language or intent. We are unable to agree in this respect with counsel. By a judgment upon a verdict the statute evidently intended to embrace all cases where the decision upon which the judgment was entered had been given upon contestation, as distinguished from one upon default; and the reason of the law is as applicable to all judgments in such cases as to those entered upon verdicts of a jury. Chamberlin v. McCarty, 63 Illinois, 262.

By the common law the action of ejectment was purely one of possession, and as it proceeded upon a fictitious demise between fictitious parties, its determination decided nothing beyond the right of the plaintiff at the date of the alleged demise. A new action upon the allegation of a different demise might immediately be instituted. It was only after repeated verdicts in such cases in favor of the plaintiff that the real claimant could apply to a court of equity to quiet the possession and put an end to the fruitless litigation respecting the property. A judgment in ejectment in an action was consequently not a bar to a second action for the same premises.

The law of Illinois changes this rule of the common law, and makes a judgment in the action of ejectment conclusive as to the title established in such action upon the party against whom it is rendered, and parties claiming under him by title arising after the commencement of the action, subject to cer