Railway Company v. Twombly/Opinion of the Court

We think that the court below was right in holding that the bill of exceptions only presented for review the refusal of the District Court, on the motion for a new trial, to set aside the verdict because not sustained by the evidence. It is well settled that such a question cannot be re-examined here on a writ of error. Marine Insurance Co. v. Young, 5 Cranch, 187; Barr v. Gratz's Heirs, 4 Wheat. 213; Mullhall v. Keenan, 18 Wall. 342.

Neither can we, as is asked, send the case back to the court below, with instructions to enter a judgment of nonsuit, because since the judgment below, and while this writ of error has been pending, the statute authorizing the action has been repealed. A writ of error to this court does not vacate the judgment below. That continues in force until reversed, which is only done when errors are found in the record on which it rests, and which were committed previous to its rendition. Here there are no such errors. All we can do, therefore, is to affirm the judgment, and send our mandate to that effect to the court below.

Judgment affirmed.