Laws: Cases and Codes : U.S. Code : Title 28 : Section 2106
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U.S. Code as of:
01/19/04
Section 2106 - Notes
SOURCE
(June 25, 1948, ch. 646, 62 Stat. 963.)
HISTORICAL AND REVISION NOTES
Based on title 28, U.S.C., 1940 ed., Secs. 344, 876, 877 (R.S.
Sec. 701; Mar. 3, 1891, ch. 517, Secs. 10, 11, 26 Stat. 829; Mar.
3, 1911, ch. 231, Secs. 231, 236, 237, 291, 36 Stat. 1156, 1167;
Dec. 23, 1914, ch. 2, 38 Stat. 790; Sept. 16, 1916, ch. 448, Sec.
2, 39 Stat. 726; Feb. 17, 1922, ch. 54, 42 Stat. 366; Feb. 13,
1925, ch. 229, Sec. 1, 43 Stat. 937; Jan. 31, 1928, ch. 14, Sec. 1,
45 Stat. 54).
Section consolidates part of section 344 of title 28, U.S.C.,
1940 ed., with sections 876 and 877 of said title. Other provisions
of said section 344 are incorporated in sections 1257 and 2103 of
this title.
Words "or a court of appeals" were inserted after "Supreme Court"
upon authority of United States v. Illinois Surety Co., C.C.A.
1915, 226 F. 653, affirmed 37 S.Ct. 614, 244 U.S. 376, 61 L.Ed.
1206, wherein it was held that this section also applied to the
courts of appeals in view of section 11 of the Circuit Court of
Appeals Act of Mar. 3, 1891, ch. 517, 28 Stat. 829.
The revised section will cover instances where the Supreme Court
remands a case to the highest court of a State and to the United
States Tax Court. It will also cover a remand of a case to the
Court of Claims or the Court of Customs and Patent Appeals. For
authority to remand a case to The Tax Court, see Equitable Life
Assurance Society of U.S. v. Commissioner of Internal Revenue,
1944, 64 S.Ct. 722, 321 U.S. 560, 88 L.Ed. 927.
Revised section will also permit a remand by the Supreme Court to
a court of appeals inasmuch as such latter court then would be a
lower court. The revised section is in conformity with numerous
holdings of the Supreme Court to the effect that such a remand may
be made. See especially, Maryland Casualty Co. v. United States,
1929, 49 S.Ct. 484, 279 U.S. 792, 73 L.Ed. 960; Krauss Bros. Co. v.
Mellon, 1928, 48 S.Ct. 358, 276 U.S. 386, 72 L.Ed. 620 and Buzyuski
v. Luckenbach S. S. Co., 1928, 48 S.Ct. 440, 277 U.S. 226, 72 L.Ed.
860.
The last sentence of section 876 of title 28, U.S.C., 1940 ed.,
providing that the Supreme Court should not issue execution but
should send a special mandate to the inferior court to award
execution, was omitted. See rule 34 of the revised rules of the
Supreme Court relating to Mandates, and section 1651 of this title
authorizing the Supreme Court to issue all writs necessary in aid
of its jurisdiction.
Changes were made in phraseology.
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