# McNulty v. Batty/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
51 U.S. 72
McNulty v. Batty
This is a writ of error to the Supreme Court of the late Territory of Wisconsin. The suit was commenced by a writ of attachment in the first judicial district of that territory, on the 3d of November, 1845, founded upon a judgment for $2747.49 previously obtained against the defendants in a Circuit Court in the state of Illinois. A large amount of property was attached belonging to one of the defendants.
All the defendants appeared by attorney, and put in two special pleas to the declaration, upon which issues were joined; and such proceedings were afterwards had thereon, that at the October term, 1841, judgment was rendered in the said suit for the defendants. The cause was then removed to the Supreme Court of the territory on error; and at the July term of that court, to wit, on the 31st of July, 1847, the judgment below was in all things affirmed. This judgment has been appealed from to this court, and is now before us for review. The citation is signed the 20th of November, 1847.
The case has been submitted by counsel on written arguments under the fortieth and fifty-sixth rules of the court.
The first question presented is, whether or not this court has jurisdiction to review the judgment below.
The Territory of Wisconsin was admitted into the Union as a state, on the 29th of May, 1848. (9 Stat. at L., 233.)
An act had been previously passed, on the 2d of March, 1847, assenting to the admission on certain terms and conditions to be first complied with; and providing that upon a compliance with them, and on the proclamation of the President announcing the fact, the admission should be considered complete. The admission did not take place under this act, and no proclamation was issued by the President in pursuance of it.
The people of the territory again assembled, by a convention of delegates, and formed their constitution, on the 1st of February, 1848, as is recited in the preamble of the act of Congress, passed 29th May, 1848, by the first section of which the state is declared to be admitted into the Union on an equal footing with the original states. The date of the admission, therefore, is the 29th of May, 1848.
The writ of error having been issued on the 20th of November, 1847, was, therefore, regularly issued during the existence of the territorial government, and the case was pending in this court at the time when that government ceased, and with it the jurisdiction and power of the territorial courts. (Benner v. Porter, 9 How., 235.)
The fourth section of the act of Congress admitting the state into the Union organized a District Court of the United States for the state (see also § 4 of the Act of 6th August, 1846, 9 Stat. at L., 57), and the 5th section provided, that the clerks of the District Courts of the territory should transmit to the clerk of the above District Court 'all records of all unsatisfied judgments, and suits pending in said courts, respectively, attaching thereto all papers connected therewith, in all cases arising under the laws or Constitution of the United States, or to which the United States shall be a party;' and the said District Court shall enter the same on its docket, and shall proceed therein to final judgment and execution, as if such suits or proceedings had originally been brought in said court.
The sixth section provides for the delivery by the clerk of the Supreme Court of the territory to the clerk of the District Court, of all records and papers relating to proceedings in bankruptcy under the late bankrupt act; and also all records of judgments, and of proceedings in suits pending, and all papers connected therewith, in cases arising under the Constitution and laws of the United States.
These sections provide for the Federal cases pending in the courts at the termination of the territorial government, and for unsatisfied judgments of that character, by transferring them to the Federal court, there to be proceeded in and completed, or executed. But no provision is made for the class of cases pending, and unfinished, that belong to the state judiciature after the admission of the territory into the Union. That class seems to have been left to be provided for by the state authorities. We had occasion to express our views on this subject in the recent case of Benner v. Porter, and need not repeat them.
The case before us is one of this character; and is, therefore, unaffected by the transfer of cases to the District Court above provided for. And the question is, whether, under these circumstances, this court has jurisdiction to review it.
By the admission of the state of Wisconsin into the Union, on the 29th of May, 1848, the Territorial government ceased to exist, and all the authority under it, including the laws organizing its courts of justice, and providing for a revision of their judgments in this court by appeals or writs of error. This appellate power does not depend upon the Judiciary Act of 1789, but upon laws regulating the judicial proceedings of the Territory. And these necessarily ceased with the termination of the territorial government.
In the case of the United States v. Boisdore's Heirs (8 How., 121), it is said, that, as this court can exercise no appellate power over cases, unless conferred upon it by act of Congress, if the act conferring the jurisdiction has expired, the jurisdiction ceases, although the appeal or writ of error be actually pending in the court at the time of the expiration of the act.
The cases on this point are referred to in the brief in that case, and afford full authority for the principle, if any were needed. (1 Hill (N. Y.), 328; 9 Barn. & C., 750; 3 Burr., 1456; 4 Moo. & P., 341.)
The writ of error, therefore, fell with the abrogation of the statute upon which it was founded.
Besides, since the termination of the territorial government, there is no court in existence to which the mandate of this court could be sent to carry into effect our judgment. Our power, therefore, would be incomplete and ineffectual, were we to consent to a review of the case. (Palao v. Hunt, 4 How., 589.) And, had the records been transferred to the District Court, as in the Federal cases, we do not see but that the result must have been the same; for the case being one not of Federal jurisdiction, should the judgment be affirmed or reversed, and sent down to that court, it would possess no power to carry the mandate into execution, having no power over the case under the Constitution or laws of Congress conferring jurisdiction upon the Federal courts. (Art. 3, § 2, Const. U.S.; Judiciary Act of 1789, § 11.)
There is another act of Congress bearing upon this question which it is material to notice; and that is, an act supplementary to the act entitled 'An Act to regulate the exercise of the appellate jurisdiction of the Supreme Court in certain cases, and for other purposes,' passed the 22d of February, 1848, ch. 12 (9 Stat. at L., 211).
The second section provides, 'that all and singular the provisions of the said act to which this is a supplement, so far as may be, shall be, and they hereby are, made applicable to all cases which may be pending in the Supreme or other Superior Court of and for any territory of the United States, which may hereafter be admitted as a state into the Union, at the time of its admission; and to all cases in which judgments or decrees shall have been rendered in such Supreme or Superior Court at the time of such admission, and not previously removed by writ of error or appeal.'
The act to which the above is a supplement was passed 22d February, 1847, ch. 17, (9 Stat. at L., 128,) and its several provisions related to cases pending, and unsatisfied judgments existing in the courts of the territory of Florida at the time of its admission into the Union as a state, and which were the subject of examination in the case of Benner v. Porter, already referred to.
As the territory of Wisconsin has been admitted into the Union as a state since the passage of this supplementary act, the second section applies the provisions of the Florida act to the cases pending in its courts, and to the judgments existing therein at the time of its admission.
But it will not be material to refer particularly to those provisions, as this second section does not bring the case before us within them. It applies them to all cases pending in the several courts of the territory; and to all cases in which judgments or decrees shall have been rendered at the time of the admission, and not previously removed by writ of error or appeal to this court. In this case the judgment had been rendered and removed before the admission, and was pending here at the time; and is, therefore, unaffected by this supplementary act.
The section was drawn, doubtless, under the supposition that, if the suit was pending here, at the time of the admission of a territory into the Union as a state, on appeal or writ of error, no legislation was necessary to preserve or give effect to the jurisdiction of the court over it; an opinion, as we have seen, founded in error.
In placing the want of jurisdiction, however, upon this ground, we must not be understood as admitting, that, if the provisions of the Florida act of the 22d of February, 1847, applied to the case, the jurisdiction could be upheld. For, if we are right in the conclusion, that, even assuming the record in the case had been transferred from the territorial to the District Court of the state, our jurisdiction would still be incomplete and ineffectual, inasmuch as that court possessed no power to carry the mandate into execution, the case not being one of Federal jurisdiction, the result would be the same as that at which we have arrived.
In every view, therefore, we have been able to take of the case, we are satisfied, that our jurisdiction over it ceased with the termination of the territorial government and laws; and that it has not been revived or preserved, if, indeed, it could have been, by any act or authority of Congress on the subject, and that the writ of error must be abated.
This cause came on to be heard on the transcript of the record from the Supreme Court of the territory of Wisconsin, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court, that this writ of error be, and the same is hereby, abated.
Mr. WALKER, of counsel for the defendants in error, moved the court to direct the clerk to what court the mandate, or other process prescribed by the forty-third rule of court, should be addressed. On consideration whereof, it is now here ordered by the court, that the clerk do not issue any mandate or other process in this case, but only a certified copy of the judgment this day rendered in this cause.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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