The City of Cincinnati v. Railway Co. enjoined from maintaining any of its said tracks, poles, wires, or other appliances in Main street, Court street, Walnut street, or Fifth street, and from operating any of its cars over any of said tracks, and also be perpetually enjoined from maintaining and operating more than one street railroad track on Auburn street between Main and Vine streets. Wherefore, it is ordered, adjudged, and decreed that the cause be remanded to the superior court, in special term, for trial for the purpose of determining the amount in money which plaintiff is entitled to recover from defendant. It is further ordered that the operation of this decree be and the same is hereby stayed for the period of six months from the date hereof, with liberty upon the part of defendant, to apply for an extension of said time, to which order staying the operation of this decree plaintiff excepts." A motion for a new trial was made and overruled and proper exceptions taken. A petition in error was filed in this court by the Inclined Railway Company, and on its motion this court allowed a supersedeas in May, 1894, to stay the execution of the judgment until the final hearing of the case in this court. * * ** and In October, 1894, the case was heard in this court and it was ordered and adjudged, "that the judgment of the Superior Court of Cincinnati, be and the same is hereby affirmed, that a special mandate be sent to the Superior Court of Cincinnati to carry this judgment into execution." On the 30th day of October, 1894, the clerk of this court sent a special mandate of that date to the Superior Court, in which said court is com The City of Cincinnati v. Railway Co. manded to proceed without delay to carry the judgment of this court in said case "into execution, the petition in error herein and heretofore granted to the contrary notwithstanding." After this mandate was sent down from this court to the Superior Court of Cincinnati, the case was allowed to rest by reason of some litigation in the circuit court of the United States for the southern district of Ohio, until May 14th, 1896, when a second supplemental answer was filed by the Inclined Railway Company. On December 18, 1896, the following entry was placed on the journal of the general term. "This cause is hereby remanded to the Superior Court in special term for further proceedings in accordance with the terms of the decree and judgment in this case." And on December 19, 1896, a motion was filed by the Inclined Plane Company, for a further stay of the operation of the decree rendered in October, 1893, and on the same day the court in special term granted the motion and it was ordered "that the operation and enforcement of the injunction in said final decree be and the same is hereby suspended for the period of six months, with leave at the end of said time to apply for a further suspension thereof." Proper exceptions were taken to this order, and in April, 1897, a petition in error was filed in the general term of the Superior Court to reverse this order, and on May 7, 1897, the judgment was affirmed, and thereupon a petition in error was filed by the city in this court seeking to reverse the judgment of affirmance, and also the order so made at special term. On the second of January, 1897, the Inclined Plane Railway Company, on leave, filed a supple The City of Cincinnati v. Railway Co. mental answer and cross-petition in which it informed the court as to the litigation in the United States circuit court, and that the Cincinnati Street Railway Company claimed to have obtained a franchise for a street railroad on some of the streets occupied by the Inclined Plane Railway, and caused the Cincinnati Street Railway Company to be made a party, and asked that it and the city be enjoined from interfering in any way by force or otherwise with the operation of the Inclined Planes' road until the expiration of said stay so granted December 19th, 1896. Issues were made up on this cross-petition by both the city and the Cincinnati Street Railway Company, and the same were heard at special term on April 13, 1897, and an order was made "that the City of Cincinnati and the Cincinnati Street Railway Company be and they are each hereby restrained and enjoined from interfering by force or otherwise with the operation of the defendant's, the said The Cincinnati Inclined Plane Railway Company's road until the expiration of the stay of this court of date of December 19, 1896." Proper exceptions were taken to this order by the city and the street railway company, and upon leave of this court the Cincinnati Street Railway Company filed its petition in error in this court to reverse the said order and judgment of the special term of the Superior Court of Cincinnati, and the city filed a cross-petition in error for the same purpose. The petition in error of the City of Cincinnati is to reverse the order of the Superior Court in granting a further stay of the final decree December 19, 1896, for six months, and the petition in error of the Cincinnati Street Railway Company, as well as The City of Cincinnati v. Railway Co. the cross-petition in error of the city, is to reverse the judgment of the Superior Court granting an injunction April 13, 1897. Both petitions in error, as well as the cross-petition in error, are founded upon the same record and will be considered together. Frederick Hertenstein, Corporation Counsel and J. D. Brannon, for plaintiff in error, the City of Cincinnati. The first question which arises upon the record is as to the jurisdiction and power of the Superior Court to make the order of December19, 1896, suspending the operation of the injunction contained in the final decree of October 21, 1893, which was affirmed by this Court, October 30, 1894, and also reserving to the Inclined Plane Railway Company leave to apply for a further suspension after the expiration of said six months. The City of Cincinnati denies the right of the Superior Court to make such order, and submits that the same is in violation of the judgment of this Court, and of its mandate. The inferior Court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate. Ex parte Sibbald v. U. S., 12 Peters, 492; Boyce v. Grundy, 9 Peters, 275; Chaires v. U. S., 3 How., 611; Patten Paper Co. v. Green Bay Co., 66 N. W., 601; Ex parte Dubuque v. Pac. R. R., 1 Wall, 69; Tyler v. McGuire, 17 Wall., 253; In re Washington and Georgetown R. Co., 148 U. S., 91; Gaines v. Rugg, 148 U. S., 229; Skelly v. Jefferson Branch of State Bank of Ohio, 9 Ohio St., 606; Jefferson Branch Bank v. Skelly, 1 Black, 436; Southard v. Russel, 16 Howard, 547; In re Potts 17 Supreme Court, The City of Cincinnati v. Railway Co. Rep., 520; Ex parte Story, 12 Peters, 339; Keller v. Lewis, 56 Cal., 466; McMillan v. Richards, 12 Cal., 468; Kirby v. Superior Court, 68 Cal., 604; Hemlein v. Martin, 59 Cal., 181; Dubrell v. Eastland, 3 Yerger, 507; Marysville v. Buchanan, 3 Cal., 212; In re Murray et al., 39 N. Y. Supp., 579; Mc Kinney v. Jones, 57 Wis., 301. As soon as the petition in error was filed in this Court the controversy was transferred to this Court and became a new action. It has often been held that a proceeding in error is a new action. Lafferty v. Shinn, 38 Ohio St. 48; The Marindy v. Dowlin, 4 Ohio St., 500; Robinson v. Orr, 16 Ohio St., 287; Conn v. Messinger, 4 Mass., 469; Young v. Shallenberger, 53 Ohio St., 291. We invite the attentiion of the Court to the fact that the Superior Court not only suspended the injunction for six months from December 19, 1896, but also gave "leave at the end of said time to apply for a further suspension." This was error even if it be conceded that the affirmance of the final decree by this Court affirmed the stay in that decree in all its terms, and that by reason thereof the Superior Court had the right to grant an extension. Innes v. Munro, 1 Exch., 473; Gibbon v. Scott, 2 Starkie, 286. The decision of the Court upon which the judg ment of April 13, 1897, was based, ignored all the questions presented in regard to the right of a Court to issue an injunction in favor of a trespasser who had no title, and who had, moreover, been judicially declared to have no right or title to the alleged property sought to be protected by an injunction, but proceeded upon the theory that the previous order suspending the injunction granted by the final decree operated, so to speak, as a |