Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-09-29

Oue gAII1 gseSS ana Sxkot1t11
yANk DAKOTA
Monday Evening, Sept. 20, 1879.
OPINIONS OF THE SUPREME COURT.
PUBLISHED BY Authority.
q. g. SMITH. Reporter.
HARRIS MANUFACTURING Co., Respondent,
JAMES NJ. Walsh, appellant.
In THE SUPREME COURT OF THE TERRI
TOBY OF DAKOTA, AT THE DECEMBER
TERN, 1878.
appeal from The Clay County Dissrid Cbart.
lNOuCAu0COJ+ .H a. .
In the section under discussion congress
has described af1rmatively the jurisdiction
which this court shall exercise, and this af-
6rmative description implies . negation
of the exercise Of such appellate powers % 10
not conprehended within 1t.
Duvonsseau '. U. 8. 6 Cranch 312. Wis
carl '. Darchey 8 Dallas 1871.
When, therefore, congress enscts that
THO NO,,et ahsM haVa onnnN0AfA inv1AN1osSnn
over final decisions Of the district court, the
act operates % . negation of such juriadic-
ton In other cases.
1t ia true that section 1865 of the U, s..
revised statutes provides that the Jurisdiction
of the supreme court a. we'll % the district
court, both appellate and original, shall be
limited by law, but when construed with
section 1860 cannot be held as authority for
charging the jurisdiction of the supreme
court In the exercise of its appellate powers.
beyond the case provided in section 1869
but must be construed only az authority to
limit its Jurisdiction within the Limitation
prescribed by that section.
By what authority, then, ~ this court
hear and determine this appeal from q mere
order before the final judgment,-before the
litigation betw cen these parties in the action
now pending in the district court 10 there
terminated? 1t is said to be claimed under
the authority of the territorial enactment
regulating appeals. Ny own view of that
statute is that it should be construed as q
mere regulation under and subordinate to
said section 1859, and as providing what or.
der may be reviewed when appealed from
in conjunction with the appeal from the
the final judgment, and after the anal ter
mination Of litigation in the district court,
and when 90 construed can be sustained.
But if it is to be construed as an enlarge
ment of the appellate powers and iurisdic-
ton of the supreme court to the extentt tina,
Independent appeals may be taken In cssei
like the one under consideration, or from
mere interlocutory orders and decisions ana
before the final judgment, l have no hesi-
tation in p%ronouncing it contrary to the pro.
visions Of the aforesaid act Of congress and
therefore in such particular and to that ex.
tent a nullity. 1t Is also contrary to the
policy of the law everywhere, except where
some intermediate and advisory court may
exist, like the general term in New York
in no sense to which is the organization OF
establishment, OF the powers of this court
similar. Why should the court be bur
thened with this appeal at this time? Fol
aught that can be made to appear legally
and regularly to this court. while this ap
peal is pending, and under consideration
and advisement. the defendant may havt
judgment upon the other issues in the cas-,
in the district court, and this court hav'
been pursuing but a myth, a delusiop, +.
mere nothing. If the statutes of the terri
tory are to be construed as l have suggest
ed may be claimed for them, as authorizing
this intermediate appeal from an order il
the cause pending the action, whence is de
rived the authority? 1t is claimed by vir-
tue of the language used In section 1859
that writs Of error, and appeals, shall DO al
lowed under such regulations as may bt
established by law" Let Us consider tn,
nature of that authority. Regulations are Il
ted. not created. What is to be regulated
Clearly the allowance of writs OF error, ex.
captions and appeals from such final decis.
ions. Other and Independent appeals ar,
not to be allowed and the exercise of oths
and different powers and jurisdiction au.
thorized. This would be creating, not reg.
ulatlng. 1t would not DO regulating the ex
ercise of . Jurisdiction already conferred
but comforting q new and disdinct jurisdic.
ton. We cannot, on the face of the evil
that it would entail, and of the policy o
the law since appellate courts were estab'
lished and against the plain reading Of tn
statute. presume it Was the intention of con
gress to authorize the legislature, to estsb
lish so absured Z proceeding. And NOR
especially when We observe that identica
language is used BY congress in providing
for writs Of error and appeals from fual de
cisioBs Of this court to the supreme court Q
the United States. Who would have tn,
temerity to suggest that an appeal or VT,
Of error would be entertained by the cour
until final judgment here.
1t may be thought that the constructio,
Of the territorial statute relating 10 appeal
have suggested as the true one, to-wit
That the orders'mentloned may be reviewed
but must swait the final termination Of III,