The opinion of the court was delivered by

This cause ivas, at a prior term of this court, heard on appeal from the Circuit decree, and that decree was *36affirmed. The remittitur of this court was issued and filed in the Circuit Court April 30th, 1879. In pursuance of the directions of this decree so affirmed, the referee thereby designated proceeded to carry out the provisions of that decree, and accordingly filed his report. No exceptions appear to have been filed to that report, and it must accordingly be regarded as entirely conformable to the decree on which it was based. This report was confirmed by the Circuit d.ecree, which is now .appealed from. The objection to the Circuit decree can only be considered on the ground of alleged irregularity, for there being no exceptions to the report of the referee, and the merits not being considered in this decree apart from the question of confirming the report, we cannot regard the merits as open before us.

The objection to the decree is that no order or judgment had been entered on the remittitur previous to the action by the referee under the decree. It is contended that there should have been an order making the judgment of the Supreme Court the judgment of the Circuit Court, and that, until such order was made, the Circuit Court had no jurisdiction to proceed with the case. If the judgment of the Circuit Court had been varied or modified, there would be ground for an order making the judgment of the Supreme Court that of the Circuit Court, but such was not the case. No authority has been shown as rendering it necessary that an affirmed judgment should be supported by such an order, and there is no reason for such a conclusion. It is unimportant to consider the authorities that have been cited to show that a judgment of the appellate court cannot be enforced by execution, as a judgment of the Circuit Court, until made such by a competent order for that purpose, for that proposition has no relation to a case where a court is proceeding to carry out the principles of its own decree, with a view to a final decree that has been affirmed on appeal.

It is altogether a misapprehension to affirm lack of jurisdiction in the Circuit Court for want of such an order. It had its record in the cause before it with the affirmation of the Supreme Court upon it. The decree affirmed pointed out the means by which it was to be carried out and executed, namely, through the action and report of a referee, named for that purpose. No necessity *37■existed for an application _to the court to enable the referee to perform the duties required by the decree. If such an order as the appellant contends for had been required, its omission would not involve a question of jurisdiction, but merely one of regularity, not affecting the merits, and which, as such, could not be ■brought here by appeal.

It is contended that knowledge was brought down to the Circuit judge that a proceeding was pending preliminary to asking a review of the former judgment of this court in the case. As there was no stay of proceedings, the Circuit judge was not bound to take notice of such application.

The appeal should be dismissed.