
    Gerish & Brewster, Appellants, vs. Pratt & Bunker, Respondents.
    APPEAL 3TROM THE DISTRICT COURT OR RAMSEY COUNTY.
    An. order of reversal having been entered upon a decision of this Court, and a mandate issued, at the request of the Attorney for the Appellant, by which the cause was remanded to the District Court for further proceedings under the order, &c., the Appellant again placed the cause on the calendar of this Court, and moved ior final judgment on the ground that the order of reversal disposed ofall the issues in the case, and that a new trial should not have been ordered. Held, that the motion is too late. It should have been made before the cause was remanded at the instance of the moving party.
    Smith & Gilman, Counsel for Appellants.
    Cox & Bryant, Counsel for Bespondents.
   By the Court

Atwater, J.

This cause was argued at the last term, and the judgment below reversed, and a new trial granted. The cause was placed on the calender at the present term, and the Plaintiffs now move for final judgment, on the ground that the decision of this Court at the last term, disposed of all the issues in the case, and that a new trial should not have been ordered.

It' appears from the files and records of this Court that the decision reversing the judgment of the Court below, was filed September 11, 1862. That an order of reversal was entered thereupon, and the mandate of this Court issued upon the request of the attorney of the Plaintiffs in Error, by which this cause was remanded to the District Court in which the trial below was had, for such further record and proceedings therein as might be necessary and just, under and by virtue of the order herein made. Judgment was also entered in this Court for costs of the Plaintiffs in Error, and a transcript and execution issued thereon.

Under these circumstances, the motion must be denied. The cause clearly is not in this Court, and h’as been removed to the Court below, at the instance of the party making this motion. If the party desired judgment in this Court, he should have moved before the cause was remanded, or at least, that he had not himself been the moving party in having the cause sent below. It is questionable whether, under the facts disclosed in the opposing affidavit, this Court would be justified in granting the motion, even were the cause still pending in this Court. But it is unnecessary to consider this question. The motion must be denied.  