delivered the opinion of the court.
This cause is now before us upon an appeal from a decree of the Circuit Court, made by it upon an auditor’s report, in conformity with the mandate issuеd by this court, when the cause was before.it upon a former occasion.
The appellants did not except to the auditor’s report, in the court below. When the cause was tried upon the first appeal, the decree of the Circuit Court was affirmed by a divided court.
We are now asked by the counsel, for the appellants to permit him to re-examine the decree of the ■ Circuit Court, upon its merits, affirmed as it was by the Supreme Court, upon the ground thаt the af-firmance was made when this court had not jurisdiction of the case; the first appeal having been taken upon what has since been discovered to have been an interlocutory and not a final decree.
The Supreme Court certainly has only appellate jurisdiction, where the judgment рr decree of the inferior court is final. But it does not follow, when it renders a decree, upon an interlocutory 'and not a final decree,'that it can,, or ought, on an appeal from a decree in the same' cause, which is final, examine into its jurisdiction upon the former occasion. The cаuse is not brought here in such a case for any such purpose. ' It was an exception, of which advantage might have been taken by motion on the first aрpeal. The appeal would then have been dismissed for the want of jurisdiction, and the cause would. have been sent back to the Circuit Court for farthеr proceedings. But the exception not having been then made of the alleged want of: jurisdiction, the cause was argued upon its merits, and the decrеe appealed from was affirmed by this court. Its having been affirmed by a divided court, can make no difference as to the conclusiveness of the аffirmance upon the rights of the parties. It is settled, that when this court is equally divided upon á writ of error or appeal, the judgment of' the court below stands affirmеd. Etting
v.
Bank of the United States,
The application has been treated in this way, to show how much at variance it is with the established practice of courts of equity.
It might, however, have been dismissed, tipon the authority of a case in this court, directly in point, Skillern’s Executors
v.
May’s Executors, 6 Crunch,
267,
and upon the footing that there is'no mode pointed out by law, in which an erroneous judgment by this court can be reviewed in this or any other court. In Skillern’s case, the- question certified by the court below to-this court, for its decision, was, whether the causе could be dismissed from the Circuit Court, for want of jurisdiction, after the cause had been removed to the Supreme Court, and this court had acted upon.and remanded the cause to the.Circuit Court, for further proceedings. This court said, “ It appearing that the merits of the cause had been finally decided in this court, and that its mandate required only the' execution of'its decree, it is the opinion of this court that the Circuit Court is bound to carry that decree into execution, although the jurisdiction of that court is not alleged in the pleadings.” The jurisdiction of this court, in that case, was as defective as it is said to have been in this. Whеn that cause was before this court, though the judgment of the court below on it would have been reversed, upon motion, for the want of jurisdiction on the face of the record, the defect having escaped the notice óf the court .and of counsel, and the court having acted upon its merits, it determinеd -that its decree should be executed. The reason for its judgniént no doubt was, that the motion to.- dismiss the case, in the eourt below, for the want of jurisdiction, after it had been before the Supreme Court by writ of error, and had been acted upon, would-have been equivalent, had it been allowed, to a decision that the judgment' of this court might be reviewed, when the law points out no mode in which that can be done, either by this or any other court.- The want of power in this court, to review its judgments or decrees, has been so frequently determined by it, that it is not now an open question. Such is the result of what the. court said in Himely and Rose,
These cases are decisive of the motion made in this case,, and as the decree now appealed from carries into execution the mandate issued by this court upon the' first -appeal, we direct- it to be affirmed.