Opinion · Supreme Court of the United States

United States v. Emholt

United States v. Emholt, 105 U.S. 414 (1882)

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1882-04-10
Topic
general

Mr. Justice Gray, after stating the case, delivered the opinion of the court. This court has no jurisdiction of the question certified. The office -and object of a certificate, of. division of opinion are to bring to this court for determination a qnestion of law upon which the opinions of two judges, competent to take part in. the judgment of the Circuit Court, are opposed to each, other. By the provisions óf sbct. 4 of the act of Sept. 24, 1789, c. 20, and of sect. 5 of‘the act of April 29, 1802, c. 31, re-enacted in the Revised Statutes, sect. 614, upon the hearing in the Circuit Court of an appeal from a judgment of the District Court, the district judge who rendered the decision appealed from, although he may, for the information of the Circuit Court, assign his reasons for that decision, is prohibited from voting or taking part in the judgment of the Circuit Court, and that judgment is to be entered according to the opinion of the judge who is not so disqualified.

Citator

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Cited by
15 opinions

Headnotes

  1. Federal Courts & Jurisdiction — Certified Questions — Division of Opinion A certificate of division of opinion is a device to bring before the appellate court a question of law upon which two judges competent to take part in the judgment of the Circuit Court are opposed; where the division certified is between a judge qualified to participate in the judgment and a judge disqualified from doing so, no question of law upon which two competent judges disagree exists, and the appellate court has no jurisdiction of the certificate.
  2. Federal Courts & Jurisdiction — Circuit Court Composition — Disqualification of District Judge On the hearing in the Circuit Court of an appeal from a judgment of the District Court, the district judge who rendered the decision appealed from is prohibited from voting or taking part in the judgment of the Circuit Court, though he may assign his reasons for that decision for the information of the court; the judgment is to be entered according to the opinion of the judge who is not so disqualified.
  3. Federal Courts & Jurisdiction — Authority of District Judge Sitting Alone A statutory provision permitting a case, by consent of parties, to be heard and disposed of by the district judge when alone holding the Circuit Court, in order to prevent failure or delay of justice, has no application when another judge is present; nor do related statutory provisions enlarge the authority of the district judge in this respect.
  4. Federal Courts & Jurisdiction — Appellate Review of Common-Law Actions A judgment of the Circuit Court on the common-law side cannot be reviewed by the appellate court on appeal; if the action is civil, the proper mode of bringing it up is by writ of error, and not by appeal.
  5. Federal Courts & Jurisdiction — Consent and Allowance of Appeal Neither the consent of the parties nor the allowance of an appeal in the court below can enable the appellate court to review the judgment of that court in any other form of proceeding than the law prescribes.
Mr. Justice Gray,

after stating the case, delivered the opinion of the court.

This court has no jurisdiction of the question certified. The office -and object of a certificate, of. division of opinion are to bring to this court for determination a qnestion of law upon which the opinions of two judges, competent to take part in. the judgment of the Circuit Court, are opposed to each, other. By the provisions óf sbct. 4 of the act of Sept. 24, 1789, c. 20, and of sect. 5 of‘the act of April 29, 1802, c. 31, re-enacted in the Revised Statutes, sect. 614, upon the hearing in the Circuit Court of an appeal from a judgment of the District Court, the district judge who rendered the decision appealed from, although he may, for the information of the Circuit Court, assign his reasons for that decision, is prohibited from voting or taking part in the judgment of the Circuit Court, and that judgment is to be entered according to the opinion of the judge who is not so disqualified. The provision of- sect. 2 of the act of March 2, 1867, c. 185, also incorporated in the same section .of the Revised Statutes, which, in order to prevent failure, or delay of justice, permits such á case, by consent of parties, to be heard and disposed of by the district judge when alone holding the Circuit Court, has no application when another judge is present. And the provisions of sect. 6 of the act of April 29, 1802, c. 31, and of sect. 1 of the act of June 1, 1.872, c. 255, embodied in sects. 650, 652, 693, 697, of the Revised Statutes, do not enlarge the authority of the district judge in this respect. It necessarily follows that the case cannot be brought to this court- upon a certificate of division of opinion between the judge, who is'qualified and the judge who is disqualified to take part in the judgment. United States v. Lancaster, 5 Wheat. 434; Nelson v. Carland, 1 How. 265.

The case cannot* be treated as before this court on the appeal from.the Circuit - Court,, without regard to the certificate of division, because it is on the common-law side of .that court. *416 If it is to be considered as a civil action, the proper mode of bringing it up is by writ of error, and not by appeal. Bevins v. Ramsey, 11 How. 185; Jones v. La Vallette, 5 Wall. 579. If, according to Clifton v. United States (4 How. 242, 250), it should be treated as in the nature of a criminal proceeding, it is hard to see how it could be brought to this court at all, except upon a certificate of division of opinion. Ex parte Gordon, 1 Black, 508.

Neither the consent of parties nor the allowance of the appeal in the court appealed from can enable this court to review the judgment of that court in any other form of proceeding than the daw prescribes. Kelsey v. Forsyth, 21 How. 85; Callan v. May, 2 Black, 541.

This court having no jurisdiction of the case, the appeal must be dismissed, and the case

Remanded to the Circuit Court.