698 ,NEW Yon, L. E.'&-W;R. Co. ;'\(' I ," ·
tI.
al. October 6, 189Ll ·
(Ci1cuU ODcrcnT . CoURT
c01lli1'qf
1 "
QJ: UIider Act,Co'Ag.March § 2\ "herebycreatinr"01rcuit. courts of appeals, aud jOhit resolut.ion March 8, ll:Slfl,proVlding that the first. meeting of the new court be held t.he thlrd Tuesday ·of Juue, 1891, but alloWing appeal to existing circuit COUN until July 1st, an appeal taken to the new court June 24t.h will not be diamissed. the right having existed from the passage of t.he 8C1. '
Error from Circuit Court. 'r1uYrntU H.Cooke, for motion. Prank Spurlock, ,Bet'oreBROWN, CircuitJ'ustice, JAoxsoN, Circuit Judge, and Distri.ct Judge. '
SAGB,
BRP\VN, Circuit Justice, (oraUy.) In this case a motion was made to writ of error, the ground that the writ oferror was made retumllb.le more than 30 days from the day of signing the citatioll, contraryto tbeprovisions of thefourteenth rule; and upon the further ground that the judgment olthe court. below was rendereu in April, and, under ,the law l\8, it stood before the, passage of the court of aPpeals act, was ari unappea.l8:b1e judgment; as there was no court of appeals in existence at time, it is claimeli that this court has no jQ.risdiction of the case. In the o.f the. arF;ument, however, it was intimated that counsel desired, only a ruling uponth ll question of jurisdiction; and that if the court,sqpul.d hold it bad, or,could have, jurisdiction of the case, they wopJd waive the irregularity in the return of the writ. There has been a general impression among the bar that this act did not take etrect until July, excepting so far as holding the formal meet,.. ing 0,£ in that no appeals could be taken before the examination of the act, however, we are ,of the tbatit, was delligned to take effect imxnediately as to most of its provisipns. of: the act provides "that there is hereby created in each circuit a(circuit court of appeals, which shall.consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record, with appellate jurisdiction." It says., "is hereby created." That certainly contemplates an immediate creation of the court. Section 3. of the act provides "that the chief justice and the associate justices of the supreme court assigned to each circuit, and the circuit judges within each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits, in the manner hereinalter provided;" and then there are further provisions with regard to the manner of'making up the court when the associate justice is not present, etc. 1'he third section contains, as a final clause, the following: "The first terms of ll8.id court shall be held on the second Monday in January,
course
NEW yQltX,J,t.·. 1ll.:&.W.R.
,599
eighteen hundred and ninety-one, and thereafter at such time as may be fixed b,ssid. courts." Tbatbecame inoperative. frOtn:.the fact that the act was not passed until after that date, so that congress was ('bliged to change the· date. . Section 4 provides "that no appeal, whether by writ of error or otherwise,shall hereafter be or allowed fromaoy district court to the existing circuit courts, and no appellare jurisdiction shallhert'after be exercised or, allowed' by sai4 existing circuit courtsj ,9ut all appeals, by writ oferror or otherwise, from said district courts shall only be subject to review in the supreme court of the United Stiltes, oi'ill the circuit court of appeals hereby established." 'Now, were it not for tM joipt resoJutiOJ;l that w8:ssubsequently passed, it would be quite evident from this that no appeal could be taken in any 'after: passage .of the,ltct, to,lh El supreme court of the United States, or to the existing circuit court. Indeed, the only really of the, act, so far as its effect. is ,concerned,is, contained in the joint resolution which was approveqon theSAIIle day the act was J>.8SSed, ,an,d;which provides "that tpElfirs,t meetil}gofthe several circuit 'courts of appeals mentioned in the act of congress passed at this .preflElnt session, entitled' An act to establish circuit courts of appeals, and to define 1U1d .,reg'?late in the j:urisdictic:m. of the cou,rW, of the lJnitedf?tates,and for otllel', pUl'pOSEls.' shall pe tIeld on the third Tuesday inJ'uPEl,A;.D, eighteen ninety-one." Now, thElre ,is nothing in tllat that would prevent the president appointing the circuit ju:dges the day, after the: a.ct, was passed, and nothing that would prevent the oircuitcourt of appeals from taking cognizance of any ,the of the. act. ,Then:there is ,a further :SAying resC)lution, 1>,ut a pljC)hibHory that nothing said aQt shall hehe1d9r c9ntp the ,of the oithe in ,QOW it, or. any Qf error or appeal isbaUhave beeJ;l sued ·out or taken to any of. said courts before the firstdaY()( July, A. D. eighteen .·" '. ." " We are o(th El opiniontpat,. the .existing jurisdiction of the ,circuit courts and of the W!lS presel'ved up to the 1$t of J111y as to all aPP13als, p.e.ndingor,taken before that time,-before that ,date, aIsq a ngQt,of appeal to .from the timt) the, act .)Vas ,/lond, that t1}e writ of error in this case, whiQh \Vas taken the 24th· day of June. lYRBproperly taken,and th"t .the Jurisdiction of the case. . , Themouon.tq JiI thel'efore denied.
');
/
>,'}
600
I'EDERAL REPOR'tE:B,
vol. 49. 'e& al. fl. ARMSTRONG.
FAmIERs' &MERCHAN'l'B' SUTlll BANK
(Circutt Court of Appeaz", Bfzth. Cwcu(t. October
0. 189L)
Gtanted.
the Case to the'Supreme Court of the United . '/ ' Willmm Worthington, for motion. John Herron, opposing; ,Before'BltOWN, Circuit ,Justice, JAcKsON, Circuit Judge, and SAGB, , ., "
BR()'WN(Citeult Justice, (orally.)' In this case a motion was ma.neto certify the Case to the stipreme the The sixth section 6f"tlle a.ct establishing the circuit court of appeals provided: of appealsmay,at'any timeioorti'fy to the supreID8 "The, court of ,tbe iUn1ted States any questioDsor propositions of law concerning w.hich itdesiree the instruction its proper decision." We think that, in view of the fact that the distriCt judge who is assigned' to :hold the court of appeals is'disqualified to pass ripon thequestioDs involved in this Mae by reason of having heard them in the oourtbelow, andthattbecircuit judge also'is perhaps disqualified under the terms of the act, by reason of having decided a similar questioniJianother case, and in view of the further fact that there is a case al1'eadY'pending on appeal, in the supremecburt of the United States, which is incidentally connected with this case, and that these may probably be argued together,we: think the questions arising in this Mse ElMuid :De' certified to the supreme court. Thela'w' pro\'ides that,:incase there are questions or propositions of Jaw ooncernittg which thiS:'court desires, instructioos,'the court may cer;' ,tif)" the 'case; and tbat,upon such: certifying beingmade,the court "may , give its instructioilS on the "questions and propositions certified to it, which shall be binding upon the circuit coui'tof appeals in,such case, or it may require that the whole record and canse may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the Bame manner as if it had been brought there for review by writ of error or appeal." That would seem to leave the mat;. ter of sending up the whole record to the supreme court.
