
    Mobile & Ohio Railroad Co. v. Jack Watly.
    1. Supreme Court. Oosts of appeal. Mandate. Oode 1880, ? 1442.
    The clerk of the supreme court cannot be compelled to certify to the court below a final judgment or decree rendered by the supreme. court until the costs of the appeal, including all costs for which he may issue execution, shall be paid. • Code 1880, § 1442.
    2. Same. Code 1880, § 1442. “ Final judgment or decree.”
    
    A final judgment or decree, within the meaning of ? 1442, code 1880, is not necessarily one that terminates the litigation in the cause, but one that disposes finally of the appeal.
    Motion in the'Supreme court.
    A judgment rendered in the circuit court of Noxubee county in favor of Jack Watly against the Mobile & Ohio Railroad Company has been reversed at the present term, on the appeal of the defendant, and cause remanded for a new trial. The clerk of the supreme court declines to certify the judgment to the lower court until the costs shall be paid; and this motion is made in the supreme court by the appellee, Watly, for an order on the clerk requiring him to do so. The motion involves the construction of § 1442, code 1880, which provides as follows: “ Every final judgment or decree, rendered in any cause by the supreme court, shall be certified by the clerk of said court to the clerk of the court from which the cause was brought, within twenty days after the rendition of the judgment, if the costs accrued in the supreme court shall be paid to him, including all costs for which he may issue execution.”
    
      
      A. G. Bogle, for motion.
   Campbell, C. J.,

delivered the opinion of the court.

The judgments of this court affirming or reversing a judgment or decree appealed from, are final in the sense in which the term is used in § 1442 of the code of 1880, and the payment of the costs accrued in this court, and all costs for which the clerk of this court may issue execution, is a condition precedent to the right to demand of him the certification of the. affirmance or reversal to the court below. The jurisdiction of this court is entirely appellate. It may, in certain states of case, gender the judgment or decree which should have been rendered below; but, even then, execution does not issue from this court for any thing but the costs accrued in the appeal, and the execution of the judgment of this court, except as to such costs, is obtained in the court of original jurisdiction. The final judgment or decree spoken of in § 1442 is one which puts an end to the cause iu this court —i. e., disposes finally of the appeal.

Motion denied.  