[244 U.S. 79, 80] Messrs. Edward S. Clark, John C. Weadock, and H. M. Gillett for plaintiff in error.
Mr. Thomas A. E. Weadock for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
This is a cross writ of error taken by Frank T. Woodworth, defendant in error in No. 179 [ 244 U.S. 72 , 61 L. ed. --, 37 Sup. Ct. Rep. 579], and is presented on the record in that case.
As stated in the opinion in No. 179, the circuit court of appeals reversed the judgment obtained by Woodworth against Chesbrough on the ground that certain amounts computed in the judgment were not sustained by the evidence, and therefore remanded the case for a new trial. Thereupon Woodworth moved to modify the opinion and judgment in such manner as to permit him to remit such part of it as the court thought was not supported by the evidence, and that the judgment, as modified, be affirmed. The motion was denied.
A new trial was had, again resulting in a verdict and judgment for Woodworth. The court of appeals again decided that it was excessive, but gave Woodworth permission to file a remission of the excess. This he did.
The remittitur recited that plaintiff remits from the judgment the sum of $7,708.56, leaving the amount of the judgment to be $16,005.44. It was stated that it was done in compliance with the opinion of the circuit court of appeals 'for the sole purpose of obtaining an entry of final judgment herein, and of securing the affirmance of that part of the judgment which is not so remitted, and is intended to be without prejudice to plaintiff in any cross [244 U.S. 79, 81] proceeding hereafter prosecuted by him before the Supreme Court of the United States, which cross proceeding follows and continues to be in connection with any proceeding prosecuted in that court by defendant for the purpose of reviewing said judgment of the circuit court of appeals.'
The court of appeals then rendered the following judgment:
In assertion of the right attempted to be reserved Woodworth prosecutes this writ of error.
A motion is made to dismiss the writ of error, and we think it should be granted. Woodworth is in the somewhat anomalous position of having secured a judgment against Chesbrough, and yet seeking to retract the condition upon which it was obtained. This he cannot do. Koenigsberger v. Richmond Silver Min. Co. 158 U.S. 41, 52 , 39 S. L. ed. 889, 893, 15 Sup. Ct. Rep. 751. He encounters, besides, another obstacle: If the remittitur be disregarded, the judgment entered upon it must be disregarded and the original judgment of the Circuit Court oa Appeals restored; which, not being final, cannot be reviewed.