The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1881-01-16

vacation "a to business arising In the Stain.
ton district, 10 which Rockingham county
belongs. In the coarse OF lis business The
writ would not ordinarily be presented to
| or acted upon by the court In Rich
mond, irasmuch rs that u the writ
were allowed the record would not he de-
liyered TO the clerk OF the court ut that
place, nor the writ issued by hun, nor
the case be placed upon the Richmond
docket. And accordingly the Order
Book OF the proceedings OF the court
contains no entry or notice OF its
action upon the case; and the Judicial
action OF u court can only be known by the
record OF its proceedings. by which alone
II speaks. But II was entirely in the course
! OF the usual order OF things that while the
court was holding q term In Richmond a
petition for q writ Of error from Rocking
| ham should have been addressed and pre-.
scented 10 and acted upon by the judges out
OF court, the court then being in vacation as
TO business arising in the Stanton district.
The record is endorsed 10 the handwriting
OF the President nhe only endorsement
upon iD-"Appeal refused Though with
out signature or date, and was probably
acted upon by the judges in conference, and
the endorsement authorized ind directed
By them in the usual way ~ such cases.
And II. which may well be doubted. the
petitioners had then wished or intended to
take the case TO the Supreme Court upon n
Federal question, the way was easy. All
they had To do was to ask the Judges to
endorse upon the petition that it was re-
fused because IN their opinion the Judgment
OF the court below was "plainly right"
and append their signatures to the refusal
a, "A ia r..,t
would then have bad jurisdiction for two
years from that date, that being the limita-
ton of It's jurisdiction under the present
act OF Congress. But then the writ Of error
from .he supreme Court would have been
directed not to the Court OF Appeals, but to
the Circuit Court of Rockingham. in the
same manner a the writ in the McVeigh
cases in % Wall. and in % u. s. X. was
directed to the Corporation Court Of Alex.
an dria. In that event the Supreme Court
would have had jurisdiction to enter its late
judgment reversing the judgment Of the
Circuit Court OF Rockingham. and il
necessary execute lis own judgment
by its own officers. Aud in that
event, also, the world would have been
spared the grave Comedy OF Errors now 10
be exhibited, the last solemn jest OF which
unfortunately Is that a dead mans estate has
been made 10 pay the same debt twice, and
each time by void authOiity--Obce by the
Confederate Government and once by the
Federal G0vernment-and both times by
formal process ~ lava curiosity, upon the
whole, unparalleled IN legal literature.
The easy way above suggested Of properly
getting the case into the Supreme COult was
not pursued, and il ever intended to be
pursued The purpose was abandoned.
The next we hear Of the case is the follow
ing entry made by The Court OF Appeals at
S'auntOn on the 18th day OF September,
1874:
" Virginia: At a Supreme Court OF APP.
peals Of Virginia continued and held at fbe
COURTHOUSE OF Augusta county, at Staun-
ion, on the 18th day o! September In the
year 1874:
"Be it remembered that at this same
term-tO vii. on the 12.h day OF Septem-
Der. IN the year IS14-c1me Charles Is. Will
liamS aud james ID. Arrest, merchants and
partners trading under the style OF Will
iams & Arrest, BY John &. WOodSOn, Esq,
their counsel, and presented to the conrt
their petition for a SUperSededS to a iudg.
mcnt OF the Circuit Court OF Rockingham
county rendered on the 18th day OF April, |
1871, in "A suit at law then therein depend !
ing. in which said petitioners were plaintiff. |
and Jason II. Brufy, administrator Of
George Bruty, deceased, was defendant;
which petition. with the transcript OF the
record accompanying the same. ana therein |
referred TO is in the words and figures fol- |
lOwing-tO wit" &c.
And then the petition was refused. and |
the reason Of the refusal stated TO be that |
i'm the opinion OF the Court the judgment |
ID lii.
- plainly right"
But at that time the jurisdiction OF the |
court bad long since been barred by Iimitl. |
ton and ceased forever.
The language OF the statute regulating |
the jurisdiction OF the court ana under |
which that jurisdiction exists is plain, eX
press, and positive:
3. No petition shall he presented for |
an appeal from. or writ Of error or super. |
SedeaS to, any final Judgment, decree or
order, whether the Commonwealth be a |
party or moi, which shall have been rem |
dered more than two years before the petit |
ton Is presented" y; and by
l.. "NO process shall issue upon any |
appeal, writ OF error, or SuperSededS |
allowed to or from final judgment, decree,
or order, il when the record is delivered to |
the clerk Of the appellate court there shall
have elapsed two years sine; the date OF |
such final Judgment, decree, or order; but |
the appeal. writ OF error, or SuperSededS |
shall be dismissed whenever 1t appears that |
TWO years have elapsed since the said date |
before the record is delivered 10 such clerk, |
or before such bond is given as is required |
to be given before the appeal, writ OF |
errbr, or SuperSedeaS takes ehcct."-Code, |
1873, cb. 17S s. 3 and l..
Under these sections the writ was dis |
missed by the Court OF Appeals for want |
OF jurisdiction In Galloway rs. Harding, % |
Graf, 543, and in Rogers Us. Strother, ~ |
Graf Az, that case was cited and approved, |
and the writ also dismissed for the like rea-
son. And In Brooks Us. Norris. | How
ard, 204, though the writ was tested and |
issued IN time. yet the requirements Of the |
statute not having been complied with In |
time, the writ was dismissed by the Su- |
preme Court OF the United States for want |
OF iurisdiction-a case. like the present, OF |
a writ OF error to judgment rendered by |
the Supreme Court OF State. Here the |
final judgment sought to be reviewed was |
rendered on the 18th day OF April, 1871, |
and the petition for the writ was not pre- |
sented TO the Court OF Appeals for its judi |
cial action until the II b day OF Sep. |
TENDER, 1874, one year and nearly five |
months after the right to present it |
bad expired, and the jurisdiction Of the
court to receive it had lapsed and gone. |
The doors OF the court had thus been efec- |
tuaIly and perpetually closed to the petition
ers, even for the purpose Of presenting |
petition, and that BY their own default. |
And 1t ls PLAIN from the extraordinary char
acter OF the entry made that the petition |
was then presented only for the purpose Of |