
    SUPERIOR COURT.
    Vermilye and others agt. Seldon.
    Where the Court of Appeals remit their judgment and proceedings to the court helow to he executed, and the court helow become legally possessed of the case, it has no power or discretion to grant an order remitting back such judg- • ment and proceedings to the Court of Appeals (for correction) without the assent or direction of the latter court, by resolution or order.
    
      (This seems to be adverse to the decision in Murray vs. Blatchford, 2 Wend. 221.)
    
    
      General Term, January 1851.
    
      Before Duer, Mason and Campbell, Justices.
   By the Court, Duer, Justice.

In this case a decree has been made in the Court of Appeals, settling definitively the rights of the parties, but requiring in the execution of its details that further proceedings shall be had in this court, and in order that these proceedings may be had the cause has been remanded to us, and the remittitur having been filed, our exclusive jurisdiction over the case has been restored.

Under these circumstances an application has been made to us on the part of the defendant for an order directing the clerk to take the remittitur from the files of the court, and the effect of granting the application it is admitted will be that the "execution in this court of the decree of the appellate court will be indefinitely suspended. Our- jurisdiction over the cause will cease entirely, and that of the Court of Appeals, in all its extent, be restored. The object is avowed to be to enable that court when it shall have become repossessed of the cause to reform its present decree by the correction of certain grave errors, which greatly to the prejudice of the defendant, it is alleged, have intervened. We are asked therefore, under the form of an order upon the clerk, to remand the cause to the court of ultimate jurisdiction in order that it may have the power of reversing or modifying and amending its own former proceedings.

We deem it unnecessary to state the special grounds upon which a motion so unusual has been rested, since we are satisfied that without the express assent of the Court of Appeals we have no power to grant it, nor upon the papers before us ought we to have listened to the application. The granting or denying of every motion which as a court we have the right to entertain, rests entirely in our own discretion. It is true this discretion is not arbitrary but judicial; but it is equally so that it is absolute in its exercise and final in its result. There is no other tribunal that can review our decisions in these cases nor even enquire into the reasons upon which they are founded, and unless we revoke or modify them ourselves, whatever injustice may be- done, the parties who suffer áre without redress. We find it impossible to believe that we have such a discretion in relation to the question now before us. We can not believe that we have an election to put an end to the jurisdiction that we have been enjoined to exercise, and to obey or disobey the lawful mandates of the superior tribunal. We can not assent to a doctrine that strips the court of supreme and ultimate jurisdiction of its most essential attributes and necessary powers; that divests it of any authority to enforce obedience tó its own decrees, by leaving their execution to depend upon the mere discretion, the will and pleasure of the subordinate courts to which they are directed. Yet it is in reality to this doctrine that our assent is required, if the consequences of taking the remittitur from the files of the court are such as have been asserted. If we have the power to grant the motion in this case, we have in all. If the power .may be exercised now, its exercise may be repeated as often as the defendant may choose to make a similar application, and we for any reasons be disposed to grant it. The Court of Appeals as often as it pleases may order the remittitur to be filed, but we by ordering it to be removed, whenever we please, may render the direction a nullity. Such is not our construction of the powers of the Superior Court and of our duties as a subordinate. The Court of Appeals has ordered the remittitur to be filed in order that its decree may be executed; and it has, therefore, by a necessary implication, ordered that it shall remain on file so long as the execution of the decree may require. The duty of executing the decree it has imposed upon us, and from the performance of this duty, by no act of our own, can we be released. To grant the present motion would, in our judgment, be an act of positive disobedience to an authority that we are bound to obey, and a reversal, not indeed in terms, but in effect, of a decree that we are bound to accept and enforce.

It has been said that by suspending the execution of the decree in the present case, we shall violate no duty and incur no responsibility, since we have sufficient evidence that the Court of Appeals desires to reexamine, and if necessary amend its own proceedings; and to enable it to do so, it is desirous that the application that has been made to us shall be granted; but we are very clearly of opinion that there is no evidence of these facts now before us upon which as judges, we could be justified in acting. The question as to the wishes and intentions of the Court of Appeals is not to be determined upon affidavits. It does not depend upon the opinions, declarations or acts of its individual members. It is only by some act of the court, as such, that the wishes of the court can be manifested, and to enable us to comply with its wishes, proper evidence of the necessary act must be furnished to us. A resolution of the court entered upon its minutes would seem to be the necessary act, and a copy of the resolution certified by the clerk would furnish to us the requisite proof; nor, perhaps, is it necessary that there should be any direct communication from the Court of Appeals to this court. The clerk of this court has not filed the remittitur under any order made by us. He has acted in direct obedience to the decree of the Court of Appeals, and if by the true construction of that decree he is bound to retain the remittitur upon file, he is still the immediate ministerial agent of that court, and in the discharge of his duties as such must be subject to its immediate orders. At any rate an order from the Court of Appeals directing the clerk to take the remittitur from the files and redeliver it to the solicitor of the plaintiff, we doubt not would be promptly obeyed, nor, if necessary, would our aid be wanting to enforce obedience.

So far as has been discovered, Murray vs. Blatchford (2 Wend 221), is the only case to be found in the reports in which an application like the present has been granted or made. In that case the remittitur was taken from the files by order of the Chancellor and for the purpose, it would seem, of enabling the Court of Errors to remodel and reform its own decree. But it does not appear from the report that the motion was resisted before the chancellor, and we think it is to be inferred that it was granted chiefly upon the ground that the remittitur was improperly or prematurely filed. Even had this precedent been as direct and positive, as it seems to have been considered, our conviction as to our powers and duties are too clear to have been yielded to its authority. To require us, without any-request from the Court of Appeals to send back to that court its own decree in order that the errors which it is alleged to involve may be there corrected, is to require us to hold to the highest tribunal in the state this extraordinary language: “You have reversed our decree, but the decree which you have sent to us we shall not execute, for we are satisfied that it has been made by you without due deliberation. We have looked into it, and must say that upon its face its errors are manifest and grave; these errors it will be your duty to correct; to enable you to perform that duty, we send you back your decree.” What reply the Court of Appeals might deem it advisable to make to the strange insult upon its authority that our proceedings would imply, we know not, but that it might justly draw upon us its severest animadversion and rebuke, we do not at all doubt. So long, however, as we retain any respect for that high tribunal, or for ourselves, by no act of ours shall such an animadversion be provoked or justified.

The motion of the defendants is denied, but without costs. The case of Murray vs. Blatchford is a sufficient precedent to justify the application.

It is proper to add that all the judges of this court having been consulted, this decision is to be regarded as their unanimous judgment.  