Fraley vs. Bentley, et al.
to have entered upon the calendar "mis-entered" hence the case was effectually dismissed therefrom.
The statute at that time, in relation to the reversal of judgments, was this: "When a judgment or final order shall be reversed, either in whole, or in part, in the Supreme Court, the court reversing the same shall proceed to render such judgment, as the court below should have rendered, or remand the case to the court below, for such judgment; and the court reversing such judgment or final order, shall not issue execution in causes that are removed before them on error, on which they pronounced judgment, as aforesaid, but shall send a special mandate to the court below, as the case may require, to award execution thereupon," etc.; vide Statute of 1862, page 141, Sec. 580.
This was not a case wherein the court should send a specia mandate to the court below to award execution upon their judgment,—such a proceeding would be proper when theirl judgment is final, and nothing more need be done, except to execute the judgment, or enforce it, or award execution thereupon. The effect of the decision in this case was merely to open it for a new trial.
The general appearance entered by the defendant in the court below, and submitting to its jurisdiction by having a trial on the motion, on its merits, to confirm the sale, without any objection, is a waiver of any error which might have been committed in the transmission of the decision to the District Court. We are, however, of opinion that there was no error committed in the transmission of the decision, that therein there was a substantial compliance with the statute, and that the defendant, without having any of his rights abridged, has had his full "day in court;" and, therefore, the motion is
Vol. i.-7.
