Opinion of the Court.

The alleged error of the court below is, that it had no jurisdiction to render judgment for restitution of the money collected on the reversed judgment. This is put forth in different forms, but in no way variant in substance. The gist of the whole complaint is that the reversal by this court being for want of jurisdiction in the Circuit Court- such jurisdiction. not affirmatively appearing-that court had no authority to act further in the matter than as directed by the mandate; and that that went only to the reversal of its judgment and the collection of the costs incurred in the appellate court.

This position is supposed to be supported by those decisions which hold that when a case is dismissed for want of jurisdiction in the Circuit Court to entertain the action, or render the judgment entered, the power of that court to award costs is gone. Mayor v. Cooper, 6 Wall. 247, 250; Hornthall v. The Collector, 9 Wall. 560, 566; Mansfield Railroad Co. v. Swan, 111 U. S. 379, 387.

But here the jurisdiction exercised by the court below was only to correct by its own order, that which, according to the judgment of its appellate court, it had no authority to do in the first instance; and the power is inherent in every court, whilst the subject of controversy is in its custody, and the parties are before it, to undo what it had no authority to do originally, and in which it, therefore, acted erroneously, and to restore, as far as possible, the parties to their former position. Jurisdiction to correct what had been wrongfully done must remain with the court so long as the parties and the case are properly before it, either in the first instance or when remanded to it by an appellate tribunal.

The right of restitution of what one has lost by the enforcement of a judgment subsequently reversed has been recognized in the law of England from a very early period, and the only question of discussion there has been as to the proceedings to enforce the restitution. Thus in Anonymous, 2 Salkeld, 588, it was held by Holt, C. J., that "where the plaintiff has execution, and the money is levied and paid, and that judgment is afterwards reversed, there, because it appears on the record that the money is paid, the party shall have restitution with

Opinion of the Court.

out a scire facias, and there is a certainty of what was lost; otherwise where it was levied but not paid; there must then be a scire facias suggesting the matter of fact, viz. the sum levied, etc."

The same doctrine has been fully recognized by this court in Bank of the United States v. Bank of Washington, 6 Pet. 8, 17. In that case the court, after observing that the party against whom an erroneous judgment has been enforced does not lose his remedy against the party to the judgment, said: “On the reversal of the judgment the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost; and the mode of proceeding to effect this object must be regulated according to circumstances. Sometimes it is done by a writ of restitution, without a scire facias, when the record shows the money has been paid, and there is a certainty as to what has been lost. In other cases a scire facias may be necessary to ascertain what is to be restored. 2 Salk. 587-8; Tidd's Pract. 936, 1137-8. And, no doubt, circumstances may exist where an action may be sustained to recover back the money." We are of opinion that the proceeding to enforce the restitution in the cases mentioned is under the control of the court, and that all needed inquiry can be had to guide its judgment in a summary proceeding, upon motion of the parties, the only requisite being that the opposite party shall be heard, so that in directing restitution no further wrong be committed. The restitution is not made to depend at all upon the question whether or not the court rendering the judgment reversed acted within or without its jurisdiction.

In the case of Morris' Cotton, 8 Wall. 507, property on land was seized under the acts of 1861 and 1862, passed for sup pression of the rebellion, according to which the claimants were entitled to a trial by jury. Such trial was not allowed, but a decree forfeiting the property was passed by the court below. This was reversed by this court, which held that the District Court had no jurisdiction to proceed in the case in the manner in which it did; and, although the proceeds of the

Opinion of the Court.

sale of the property had been distributed, it directed, in its decree of reversal, that the court below should grant a new trial and issue a writ for restitution of the proceeds to the registry of the court.

In Ex parte Morris, 9 Wall. 605, 607, the United States filed an information in the District Court for the Middle District of Alabama, against certain bales of cotton, which it was alleged were liable to seizure and confiscation, and had come into the possession of the petitioners. The court entered a personal decree against them for the value of the cotton. On appeal this court reversed the judgment and remanded the cause to the District Court with directions "to cause restitution to be made to the appellants of whatever they have been compelled to pay under that decree."

The same doctrine is sustained in the several state courts of the country, all recognizing the power of a court, whose judg ment is set aside on its own motion or reversed by order of an appellate tribunal, to direct restitution, so far as practicable, of all property and rights which have been lost by the erroneous judgment. Hiler v. Hiler, 35 Ohio St. 645, 646; Chamberlain v. Choles, 35 N. Y. 477, 479.

BREWER, J. (BROWN, J., concurring):

Judgment affirmed.

I had supposed the law to be otherwise, and that if the Circuit Court did not have jurisdiction by reason of a lack of proper citizenship of the parties to render a judgment in favor of the plaintiff against the defendant, it was equally without jurisdiction thereafter in the same case and without any change in the citizenship to render a judgment in favor of the defendant against the plaintiff. But the result is so manifestly equitable I am glad to know that I was mistaken, and that the law is as it is now adjudged to be.

Opinion of the Court.

BRITISH QUEEN MINING COMPANY v. BAKER SILVER MINING COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.

No. 169. Argued March 13, 1891. Decided March 16, 1891.

There being no exceptions to the rulings of the court in the progress of the trial, and the findings of fact by the court being general, the record raises no question open to revision.

THE case is stated in the opinion. Argument was begun on behalf of the plaintiff in error, but the court, on examining the record, declined to hear further argument.

Mr. James B. Reilly for plaintiff in error.

Mr. A. H. Wintersteen and Mr. Wayne McVeagh filed a brief for defendant in error. Mr. E. T. Wells, Mr. R. T. McNeal and Mr. John G. Taylor also filed a brief for same.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

This case was tried by the Circuit Court, without a jury, and under 649 and 700, Rev. Stat., the finding must be "either general or special." It cannot be both. Here there was a general finding.

The record contains a bill of exceptions, but no exceptions to the rulings of the court in the progress of the trial of the cause were thereby duly presented, and although after reciting the evidence it is therein stated that "the court thereafter and during the said term made the following findings of fact and judgment thereon," which is followed by an opinion of the court assigning reasons for its conclusions, this cannot be treated as a special finding enabling us to determine whether the facts found support the judgment, nor can the general finding be disregarded. Dickinson v. Planters' Bank, 16 Wall. 250; Ins. Co. v. Folsom, 18 Wall. 237; Norris v. Jackson, 9

Syllabus.

Wall. 125; Flanders v. Tweed, 9 Wall. 425; Ins. Co. v. Tweed, 7 Wall. 44; Miller v. Life Ins. Co., 12 Wall. 285; Ins. Co. v. Sea, 21 Wall. 158; Martinton v. Fairbanks, 112 U. S. 670; Raimond v. Terrebonne Parish, 132 U. S. 192; Glenn v. Fant, 134 U. S. 398; Lloyd v. Mc Williams, 137 U. S. 576.

The record raises no questions open to revision by us and the judgment is Affirmed.

ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY V. COMMERCIAL UNION INSURANCE COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

No. 1169. Submitted December 15, 1890.- Decided March 16, 1891.

In the State of Arkansas, foreign insurance companies are governed by the statute of March 26, 1887, requiring such companies to file with the auditor of State stipulations for the service of process upon them, and not by the statute of April 4, 1887, which requires foreign corporations to file such stipulations with the Secretary of State.

The right of an insurer, upon paying for a total loss of the goods insured, to recover over against a third person responsible for the loss, is derived by way of subrogation from the assured, and can be enforced in his right only.

A railroad corporation, which has contracted with a compress company to receive and transport all cotton brought by its owners to the warehouse of that company, and neglects to do so, by reason of which, and of the consequent accumulation of cotton at the warehouse, so large a mass of cotton is piled and kept by the compress company in the adjoining street, as from the danger of taking fire to become a public nuisance, and is there destroyed by fire from an unknown cause, is not responsible for the loss to owners of part of such cotton for which it has given no bills of lading, if it has in fact assumed no custody or control of any of the cotton, or of the place where it was kept, before it was put upon the cars; although it has, as a matter of convenience, given to the owners of other parts of such cotton bills of lading in exchange for the warehouse receipts of the compress company; and although it is prohibited by statute, under a penalty, from issuing bills of lading, except for goods actually received into its possession.