ment of the proceeding, or on an order for the substitution of parties. United States v. Boutwell, 17 Wall. 604. 73. (Oct., 1873.) Mandamus is the appropriate remedy to restore an attorney disbarred, where the court below has exceeded its jurisdiction in the matter. Ex parte Robinson, 19 Wall. 506. 74. (Oct., 1873.) An appeal does not lie to this court, from an order of the District Court, disbarring an attorney. The remedy of the party, if any, is by mandamus. See the case as reported, supra. Ex parte Robinson, 19 Wall. 513. 75. (Oct., 1874.) Mandamus will not lie from this court to the Circuit Court to compel it to enforce a provisional decree made by it, when, by a performance of the condition, on the non-performance of which alone the decree was to become absolute, it has not become absolute. The Circuit Court, in such case, does not lose its power over the decree. Ex parte Sawyer, 21 Wall. 235, 694. 76. (Oct., 1874.) The order of a Circuit Court remanding, for want of jurisdiction to hear it, a case removed from a state court into it, is not a "final judgment" in that sense which authorizes a writ of error. The remedy of the party against whose will the suit has been remanded is by mandamus to compel action, and not by a writ of error to review what has been done. Railroad Co. v. Wiswall, 23 Wall. 507. 77. (Oct., 1876.) To entitle a petitioner to a writ of mandamus to compel a Circuit Court to allow an appeal from its decree, he must show that he has a clear right to an appeal which has been refused him by that court. Ex parte Cutting, 4 Otto, 14. 78. Mandamus does not lie to compel a Circuit Court to allow an appeal from its decree, by a person not an original party to the suit, unless it appears that his petition to be allowed to intervene was granted, or that he at least acted or was treated as a party. Ib. 79. (Oct., 1876.) Subsequently to a decree pro confesso, additional parties were, by leave of the court, permitted to intervene as defendants, in the same manner and with the like effect as if named in the original and supplemental bills. The case was then referred to a master, who computed, ascertained, and reported the amount of indebtedness, &c.; whereupon the court, after finding certain facts and overruling the exceptions of such intervening parties to his report, passed a final decree, but denied their right to an appeal therefrom. Held, 1. That they had that right. 2. That, to enforce it, a mandamus lies from this court. Ex parte Jordan, 4 Otto, 248. 80. (Oct., 1876.) This court cannot, by mandamus, compel an inferior court to reverse a decision made by it in the exercise of its legitimate jurisdiction. Ex parte Flippin, 4 Otto, 348. 81. Mc Cargo v. Chapman, 20 How. 555, so far as it conflicts with this doctrine, disapproved. Ib. 82. (Oct., 1876.) This court will not, by mandamus, compel an inferior court to grant a motion to vacate an order setting aside a judgment of nonsuit. Ex parte Loring, 4 Otto, 418. 83. (Oct., 1876.) A., having a decree against the city of Memphis for the payment of money, obtained, by judgment rendered March 30, 1875, a mandamus directing her, for the payment of the decree, to levy a tax upon all the taxable property of the city. She thereupon passed an ordinance. levying a special tax of fifty-four cents "on the one hundred dollars' worth of property." Under the laws of the state, taxable, real, and personal property, other than merchants' capital, is embraced in one tax-list, and merchants' capital in another. A., finding that such capital was not subjected to the special tax, although it was to that levied for all other purposes, and that the required sum would not be raised, moved for a further peremptory mandamus, requiring such capital, as it was assessed for other purposes in the year 1875, to be included in the property to be taxed for his benefit. Such mandamus was directed by judgment March 2, 1876. On the twentieth of the following May, the city moved to set aside the latter judgment; but the court refused to grant the motion, and re-entered, on that day, the judgment as the final judgment in the premises. Thereupon the city, within due time, sued out a writ of error, and gave the necessary bond. Held, 1. That the court had the right to set aside the judgment of March 2 during the term at which it was rendered, and to re-enter it as of the date when the motion to set it aside was made. 2. That the writ of error was properly sued out on the re-entered judgment, and is a supersedeas. Memphis v. Brown, 4 Otto, 715. 84. (Oct., 1877.) Where the final decree of the Circuit Court is inconsistent with an interlocutory decree granting affirmative relief upon a cross-bill in the same suit, a party adversely affected by such final decree, where the matter in dispute is sufficient, has a right to appeal to this court, which, if withheld, may be enforced by mandamus. Ex parte Railroad Co., 5 Otto, 221. 85. (Oct., 1878.) A mandamus cannot be used to perform the office of an appeal or a writ of error. Ex parte Schwab, 8 Otto, 240. 86. Where a suit was brought in the Circuit Court by assignees in bankruptcy, praying that a transfer of personal property by the bankrupt to A. be decreed to be fraudulent, that their title thereto be declared to be perfect, and that A. be enjoined from prosecuting an action therefor then pending in a state court, and the Circuit Court, after due notice, awarded a preliminary injunction, and an order is asked here. for a mandamus commanding the judge who granted the injunction to set it aside, Held, that the Circuit Court having jurisdiction of the suit, an error, if one was committed, can only be reviewed here after a final decree shall have been passed in that court. Ib. 87. (Oct., 1879.) In ejectment, where A., B., and other defendants were respectively in the separate possession of specific parcels of the land, judgment was rendered against them for the recovery thereof and costs of suit, and also against each for damages for withholding the parcel whereof he was in possession, which exceeded in the aggregate $6,000. A writ of error was sued out by all the defendants. A. and B., to render it a supersedeas of the judgment against them, severally gave a bond, which was duly approved and accepted. The court below thereupon ordered that the proceedings on the judgment as to A. and B. be stayed, and that a writ of restitution and execution be issued against the remaining defendants. Held, that a mandamus directing that the judgment be carried into execution against all the defendants would not lie. Ex parte French, 10 Otto, 1. 88. (Oct., 1879.) A mandamus does not lie to control judicial discretion, except when that discretion has been abused. But it may be used as a remedy where the case is outside of that discretion and outside the jurisdiction of the court or officer to which or to whom the writ is directed. One of its peculiar and more common uses is to restrain inferior courts and keep them within their lawful bounds. Virginia v. Rives, 10 Otto, 314. 89. (Oct., 1879.) This court will not by mandamus revise the action of inferior courts acting within the scope of their authority touching any matter about which they must exercise their judicial discretion. Ex parte Railway Co., 11 Otto, 711. 90. A petition was presented for a mandamus to the Circuit Court of the United States for the District of Colorado, in the matter of the proceedings had subsequently to its receipt of the mandate ordered in Railway Company v. Alling, 99 U. S. 463. They are mentioned infra, pp. 715-717. Held, that the case is not one which calls for interposition by mandamus. Ib. 32 JUDGMENTS IN CIRCUIT COURT ON WRIT OF ERROR. 91. (Oct., 1880.) This court will not by mandamus compel an inferior court to reverse a decision made in the exercise of its jurisdiction. Ex parte Perry, 12 Otto, 183. Issues of Fact. SEC. 689. The trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. 24 Sept., 1789, c. 20, s. 13, v. 1, p. 80. Appellate Jurisdiction. SEC. 690. The Supreme Court shall have appellate jurisdiction in the cases hereinafter specially provided for. 24 Sept. 1789, c. 20, s. 13, v. 1, p. 80. Judgments in Circuit Court, on Writ of Error. SEC. 691. All final judgments of any Circuit Court, or of any District Court acting as a Circuit Court, in civil actions brought there by original process, or removed there from courts of the several States, and all final judgments of any Circuit Court in civil actions removed there from any District Court, by appeal or writ of error, where the matter in dispute, exclusive of costs, exceeds the sum or value of $2,000,1 may be re-examined, and reversed or affirmed in the Supreme Court, upon a writ of error. 24 Sept., 1789, c. 20, s. 22, v. 1, p. 84. 4 July, 1840, c. 43, s. 3, v. 5, p. 393. SECTION 691. JUDGMENT, FINAL OR NOT.— DECISIONS, 1-14. 1. (Jan., 1832.) All motions to quash executions are addressed to the sound discretion of the court, and as a sum 1 Now $5,000. See 18 Stat. at Large, p. 316. |