The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-05-03
LEGAL INTELLIGENCE.
THE DISTRICT ATTORNEYSHIP
Decided at Last.
|GIBBONS GOES OUT.
Sheppard Slips I'm.
UDGE ALLIS0N'S OPINION.
The Court Declares Sheppard
to Have Been Elected
by a Majority Of
13 Votes.

burt Of Quarter Sessions--Judges Allison, Ludtou,
Peirce, and PdIson.
This morning all the Judges appeared upon
|he bench and before large audience Judge
Nilsson proceeded to deliver the opinion of the
;ourt in the above mentioned case declaring
[r. Sheppard to have been elected by majority
4 13. The opinion is as follows:-
hOn the 10th day of October, 1869, this Court
cided that Charles Gibbons at the general
ection held on the second Tuesday of October,
l6S, had been elected District Attorney for the
ity and county of Philadelphia, over Furman
xbeppard by majority of siXty-eight votes.
AT the same term of the Court on the 2Sth
ay of October, Furman Sheppard presented bis
etition, which was allowed to be filed, in which
is set forth that he had made an examination
II the tables and estimates upon which the judg-'
hent of the Court was based, and had Disco
ered therein number of omissions and arith-
letical and clerical errors, to the extent of 112
otes, showing that the petitioner was tho duly
ected District Attorney by majority of not
sss than a votes. The prayer is for a re-
xamination of the count and the judgment
tered thereon, and that the Court will declare
hat is the true vote and majority of the petit
hper.
reason that Mr.. Sheppard had, by certiordri,
moved the case from this Court into the
preme Court. 1t was no longer under our
htrol so as to enable us to change the judg-
cQb WHICH udu UGtu SnLeT6u, Iurtl6r tDan TO
D that the true record was sent to the court
0ve. We probably could have corrected a
stake apparent upon the face of the proceed
gs where there was anything to correct by, or
ere there was plain error in the arithmetic
the Court and to this extent we would have
ourselves authorized to interfere with the
ord before certifying it to the Supreme Court,
t had been regarded as important to thus in
fere with our judgment pending the appeal.
these clerical errors would not have
hnped the result, deemed il
1t to await the decision upon the certiorari.
rther than this we could not have gone, be-
Use the writ in effect was q SuperSededS. Our
pds were tied by the act of the petitioner, and
this reason we paused after the argument
upon the petition, both upon the merits and
on the law of the case as it then stood prac-
ally removed to the court above, though the
ord had not in fact been made up and sent
the Supreme Court. If we had done other
e, we would have exposed ourselves to q
rge of contempt of the higher court, or our
ceedngs would at least be void after service
he writ. 12 Mod. 3S4. The authorities are
entirely consistent as to the light in which
action would have been regarded in the
rt of errors, but they all agree that after
vice, and until the record is sent
nothing can be done except
correct plain mistake, and
correction can only be made for the purpose
nabling the Court to obey the command to
up the record, which means the correct
the true record. A misprision of the clerk
mistake Oh Lue OOuTI Is In6 UIulL OF our
bority over the record after the certiorGri
been lodged in our court; unless, indeed, the
gment has begun to be executed before ser
in which case the execution proceeds un-
cted by the certiordri. This, however, has
application to the case of contested cleo
B, In which the court who are required to
and determine ON the merits have nothing
DO with the execution of their Judgment.
power terminates with the judgment or
rec.
.a IF Etus,, n yU.;.
is a conclusive authority upon this point.
as the case of a certiordri allowed by the
RENE Court to the judgment of this Court in
matter of the contested election of Thomp-
vs. Ewing The Court say the effect of the
was to stay further proceedings in the court
pw. Originally in fact, and now always in
ory at least, it takes the record out of the
tedy of the inferior court and leaves nothing
re to be prosecuted or enforced by execu-
certiordri after judgment, like writ oi
pr, is, in fact new suit 1t enables him
obtains it to aver errors in the record
loved, not to retry the facts in the Court
We. A judgment in ii may be followed by a
ial in the Court below; if the errors in Law
sustained. This principle was reaffirmed by
decision of the Supreme Court in the pre-.
case, the Court refusing TO look beyond
record and the principles of law upon which
rendered our decision. But it has been as
led that our power to re-eXamine the case
to alter our judgment upon the merits, Ol
to correct mistakes, is at an end, and tha
prayer of Mr.. Sheppard for a rehearing mus
this reason be refused.
he common law principle that after the tern
which Judgment has been entered from
ch an appeal may be taken by writ of errol
otherwise, 1t cannot be disturbed or changed
been invoked in support of the objections
phens VS.. Cowan, 6 Watts, 513, contains
ng assertion of this doctrine. But it is ever
qualified to some extent The qualiica
is contained in the statement that it woulC
zoing too far to hold that the court may not
DTe any proceeding has been had upon tn,
gnent, correct a mere mistake that has
en- in entering it, differently from what wa
nded and, perhaps, directed. Th'
ION upon which the general prin
is maintained is that it is thu
of the court in error when they reyers,
dgnent to give such judgment as the cOur
W ought to have given. This shows that th
Rcille is not applicable to the case before US
The Supreme Court are, as they have stated
tly powerless to correct any error of fact il
infested election. Stephens VS.. CoWan, AM
authorities there cited apply to cases il
|ch the court above can grant relief by
ection OF the judgment, which they canno
this case, for the cause assigned in tn
hon. They cannot do here what it is sal
Mod, 3, the judges are to perform, st
rn as well as to affirm or reverse" aud b
peedy justice to the parties. In Castle We
poids 90 Watts, 52) the doctrine sought I
Pplied against the petitioner is stated thHs