“ If a party has not had this opportunity, he is not bound; as to him an essential element of appellate jurisdiction is lacking. Accordingly, when decree was entered in the court below upon the mandate of the circuit court of appeals, the trust company was expressly excepted from its operation.
It is in this light that the subsequent proceeding in the circuit court must be examined. If that court had jurisdiction to vacate the decree of January 10, 1908, in favor of the trust company, it was by virtue of its own control over the decree, and not by force of the mandate of the appellate court. ”

“ Mercantile Trust Co. 152 U.S. 590, at page 593, 38 L. ed. 563, 564, 14 Sup. Ct. Rep. 693, 695. See also Terry v. Abraham (Terry v. Merchants' & P. Bank) 93 U.S. 38, 23 L. ed. 794; Wilson v. Kiesel, 164 U.S. 248, 251, 41 L. ed. ”