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

tepugnancy to the Constitution and laws OF
tho United States. and the decision Is IN
favor OF " validity
II will now he shown what the Court OF
Appeals actually did IN refusing to comply
with the mandate In this case. ana why IL
was done. Aud with all respect, unless
the writer Is greatly mistaken, It VIII ap-
pear that the original action of the Court IN
refusing 10 order writ OF error ana super
sededs TO the judgment OF he Rockingnau,
court was right In itself. apart from ana
exclusive of the reason assigned Tor u
that the Court mad no jurisdiction ~ tha'
time 10 grant the writ; that its jars.
diction bad then long since ceased ana
been barred by the statute oil lilnita'
lions; that whatever may have Dten
the reason assigned for originally re-
fusIng the writ. or subsequently for reiuslng
10 comply with The mandate 10 issue ~, the
case never was q pending cause In that cour'
for any purpose whatever: that the coiif'
itself so decided in refusing 10 comply win
the mandate to issue the writ. and thai the
Supreme Court has been led into grave
mistake by an error in It's copy OF the re-
cord in supposing that the Court OF Appeals
rad held or said otherwise; and, nnally,
that the Supreme Court has undertaken To
confer Jurisdiction upon the Court OF APP
peaIs OF Virginia when by the Constitution
and statutes under which that court exists
il had no jurisdiction, and that upon the
destination by the Court OF Appeals 10 u.s.
regard the law AMI assume jurisdiction
when it had none the Supreme Court mas IT,
self undertaken 10 exercise jurisdiction
when IL had none, and that its action, IKE
the first action OF the Court Of Appeals In
taking any notice Of The petition Tor the
writ, is necessarily, in legal sense. an ADJ
solute nuIlty, according TO its own WELL
settled decisions.
In order to understand the facts OF the
case a preliminary statement must be made
OF the different modes provided by the
statute law of Virginia for taking iudg'
ment of q lower court OF the State To the
Court OF Appeals for review and from the
Court OF Appeals or other State court 10
the supreme Court upon Federal qIles-
ton; aud as the matter, 30 far a. the SUI
preme Court Is concerned, il OF qu.e re-
cent development and illustration. and
seems not to be generally well understood,
and as "a mise inception Of or inlttentlOn 10
the requisite distinctions has given rise 10
all tue error and trouble in this case, some
particularly and detail OF explanation may
be pardoDed. Ii l. not matter OF right 10
take case TO the Court OF Appeals, and
leave must first be granted. Tbs leave
may be granted either by the Court or BY
one OF the judges out OF court. In either
case the party wishing an appeal or writ OF
error or SuperSededS must present copy
OF the record In the court below, accom-
panied by petition for the writ assign
ing the alleged grounds OF error. II the
petition is presented to the court it Is
granted or refused as an act OF the court
and al entry made on the record OF the pro-
ceeGings OF the court Of the allowance or
refusal. II the petition is presented to one
OF the judges out Of court it may be granted
or refused by him, and il refused may be
passed to another Judge, and so OH through
the hands OF all the judges until ii shall have
been granted or refused. In case wherein
the court or Judge to whom petition il
duly presented shall deem the judgment
OF "plainly right" and sbali
reject it Oh that ground, then, " the. order
OF rejection states that fact, no other petition
can afterwards be presented for the same
purpose. II the petition be granted either
by the court or by Judge 0u' OF court the
appeal or writ OF error and SuperSedeGS is
UOt uHliI NFilfln CpuuiiIohH
scribed be performed by the party. On the
except IN certain enumerated cases
1t IL provided that the pi Ocess shall not take
effect until bond is given by the petitioner
d as required by law. IL the pc
tiilOn be allowed, the papers are delivered
10 the clerk and become part OF the records
Of The court, and that officer issues the
writ, hut is required to endorse thereon, If
a. Il ha
j. not TO be effectual until such bond as is
required shall he given. In practice, il the
petition is refused, whether by the court
acting in its corporate capacity or by the
Judges acting out OF court, the refusal is
endorsed, but the papers do not become re-
cords OF The court, and are returned 10 the
parties or their counsel. II, when the Pc
tition is refused by the judges, it is desired
10 fake the case TO The Supreme Court upon
4 Federal question, the Judges, upon re-
quest, usually endorse the reasons OF
he refusal upon the petition, and ap-
pend their names 10 the endorsement.
But il a party wishes 10 obtain a review OF
his case By the Court OF Appeals, the law
prescribes definite time within which it
nay be done. That time j. two years from
he date Of the judgment which is desired
% be reviewed. Ii Is expressly provided
hat no petition for either writ shall be pre-
;ented after that time; that no process shall
ssuc " when the record Is delivered to the
clerk OF the appellate court the TWO years
shall have elapsed; and that whenever il APP
pears that the two years have elapsed before
he record is delivered to the clerk, or be-
lore the required bond IS given, the wit
shall be dismissed.
Ii thus appears that in order that party
nay get his case into the Court OF Appeals
rs pending cause he must first present his
petition and obtain an allowance OF the neces-
,ary writ; then deliver the record to the
clerk who issues the process, which is EN-.
lorsed to take effect upon the execution OF
he required bond; and that all this must
be done and the bond given within two
years from the date OF the judgment. decree,
DR. order sought to be reviewed, the iurIs-
1iction OF the Court OF Appeals, even TO re-
ceive petition, ceasing after the expiration
)f the two years.
For the statute as TO the whole mode OF
the substance Of which, for
breyity sake. has been above given, see
Code 1873, cb. 17S, S. PHI.
1t remains to be added that the Court OF
Appeals has an annual session at Wytbe-
vic anu az oiduutO", uFuaHJ pc'u OF Inv
'Ormer place in July, and at the latter In
September; and that 1t annually holds three
e-sions in Richmond. beginning respect
vely in November, January, and March;
md that as a general rule when sitting at
my one Of these places il hears and deter
mines as a court only the business arising
within the district in which the court is
ieId, and that it is in vacation as 10 business
rising in the other districts. See Code,
S73. ch. 1876, So, Ell seq.
We will now recur 10 the difference be-
ween the two modes OF procedure above
pointed out in obtaining fOothOld in the