Paul v. Luttrell

| Colo. | Feb 15, 1872

Per Cubiam.

Tour motion must be denied. When the former judgment of the district court was reversed, the defendant still remained in court, and was bound to attend and proceed to trial whenever required by the district court. He was not entitled to notice from the plaintiff of his purpose to docket the cause or proceed to trial.

That the plaintiff failed to have the cause docketed, or to file the mandate of this court in the court below at the first term after judgment of reversal, is nothing ; the cause was, nevertheless, pending there, and if the defendant desired any step taken at that time he might have procured the' mandate himself, or he might have proceeded as the plaintiff did, finally, without the mandate. The jurisdiction of the district court over the cause was restored as soon as judgment was given in this court. The mandate was but evidence of that jurisdiction; and, though there are prudential reasons, perhaps, why transcript of the final orders of this court, where causes are remanded, should be filed in the court below before either party is allowed to proceed, yet it is not error to proceed without it, for the question is altogether one of jurisdiction, and if the transcript should be filed at any time hereafter, as it may be, it will afford conclusive evidence that, at the time when the district court gave the judgment now complained of, it had jurisdiction to do so.

The award of the writ of retorno appears to us to be irregular, and if the plaintiff in error proceeds with his writ of error he may probably have that order vacated, but, in the mean time, the defendant in error must be at liberty to take execution for his damages.

Motion denied.