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


OF The defendant, and without noiice :.
him, would certainly have been rpsrve, =,
curiosity and Injustice --Grsy ~. Briyn,N'
dclIo, Wall. G27.
This suggestion, therefore, cannot ior
moment be entertained. IL may have bee
that, II. as seems 10 have been, and no douJ,
was the fici, the judges out OF court ac,es
upon tbe case 10 Richmond and r,fn.ed
the writ, and BY their authority The record
was endorsed "AppeaI refused" tbo'
might even In September, 1874. have A.
pended their signatures A. evidence O. NJ.
refusal and an endorsement made a Az,
additional fact true in itself deemed n.ce's
sary or proper o. the foundation Of =,
appeal TO the Supreme Court. But iber
the writ from the Supreme COun would
have been directed 10 the Circuit Courr .,
Rockingham, and The Court q Appe,i.
would have had notbiog TO do with thcc,,e
as has been above shown. In poin, ~ f,c,
the two modes Of procedure seem H. h,,'
been COMPOUNDED and blended, and % CO..
not unnatural that that should have b,o,
so, inasmucb az The practice since c.ls.
llsbed by The Supreme Court in lhe McNri,l
cases was not then known 10 The Drofr..i.r
and. II may be added. when first announce
in Gregory Us. McVeigb excited no rl'
surprise In Virginia. AND obylou.i,
upon the whole. the action ~ h.,
Court Of Appeals was an irldv.-.
tence. and imDroydently done. r. d...
not appear thct its attention wa, clll,d'
the lapse OF time; aud the judg,, ~.
court having previously refused Nh, na..
ton, and beng Of opinion tbst thr ug,
ment below WAS plainly right, tn .Yr
did not hesitate on the motion Of ,.un.l
aud the presentation Oi the petition ptb ,
copy Of the ~ cOrd 10 order an entry t, b..
made refusing ;hc petition with lhcAI,.
and for the purpose OF giving The Nupom.
Court iuri-dIc ion To- review IT, op,u.o,
upon tue point involved. f. /, M; ~.
much to say that Tue enfry va, made. up9r
the motion Of counsel quite - Il mliipra
course. and without much consideration
But If lis attention bad beca colicd 10 ft.
lapse OF it, jurisdiction b. limitation even
to receive the petition. II crnnnt an IN b.,
supposed that It would have taken any
other notice OF it than 10 di,mi>~ II from
attention. And it j. equally obylGu. thu
the Supreme Court assumed jurisdiction
by similar inadyerteucc. Al tn
jurisdictiOnal facts were before 'll.
court that were before The Count
Of Appeals and equally appeared Do
ne peadings and on tie record.
The petition 10 thar court for H. WIT ~ rr.
ror, the petition e. the Court o. Appeals TO-
Is writ OF error. and TIE record accOmpa-
wing II, all and each .hpwed that more than
wo years bad el3psC d be'ween the Ism day
# April. 1871. and the 18TH day Of >cptem-
Der, 1874. And il bad before II the -latul'
aw Of Virginia defining ana limiting thr
jurisdiction OF the court ~ AppCal.-ihr
code OF 1873. ch. rs Il 2-l1-to which %
was at liberty 10 lOrK - see wat WI, ID,
jurisdiction Of that court aud what 10 bad
lone, and us own jurisdiction a, 10 ID lm.
ted class OF eases over Whlcb, IL 90 tlif
.ourt. il had Jurisdiction al an. And o..
own decisions, especially those IN % Wal
nd Oh l.. :. H., above cited, and o., h.
opinion in the present ease. ahGudWfIr
how its entire familiarity with thc WnUlcol
hat statute. And yet II did Rot u.lcrh.
hat the Court Of Appeals bad no irI.l.D.
ion 10 enter the order Of the l2'b II ~.p.
ember, 1874 and that such action SIS
utility because OF The lgp>c 4 Jurisdiction
II the court by limitation, 60 shown
mOng the very first sections 81 Of
he statute, and hence that n, oRn Uu.-
lIctlOn bad never emerged into oN.,.Iurr.
md lis action IN assuming tO r,}tW md
'eyeT>e nulify was Itself nothing buf
,nllty, Tue failure OF lbif court 10 >cc the
point was Of course an inadSelttucr. jp,ta,
like inadyeitcnce had happened 10 tht
'Ourt Of Appeals. It. attention va, nof
allied TO it by cOul 81, 2ud 70 W1> over
Ooked precisely in the same manner q. H.
Iad been overlooked bv toe Court ~ Ap
,eal.. whose attention had not been call,dto
{ by counsel, and a. II seems 20 have bcog
ever since untl tni- present
writing. II the matter bad been brought
o the notice Of tue court undoubtedly if
would have dismissed the Wrlt pV1 Npof,,
5 IL did in Brook rs. Morris u Howard.
0D Ii is impossible 10 suppose. indeed.
hal the able and learned Judge, II The >u-
,reme Court would have assumed iGr>iic-
ion TO reverse proceeding when u was
made to appear By so simple o matter aS The
alcClatIon OF the Tine between two date, that
{ had none, and The court Whose action u
vas called upon to reverse had none; ana
he honorable and eminent Judge. Mr. Ju'-
ice Field, who delivered the opinion of thr
curt, alike in originally deciding tie ci't
nd ~ it, action reviewing thli OF the 'out
( Appeals declining 10 obey 10, mandate 10
sSue The writ, il NAV safely hc assumed,
vas one Of the last men con- 'iou>'Y toalloW
im>eIf TO become the instrument ~ usuipa'
ION and injustice.
It was, howey, +. in this condition oi
hings that Il writ OF error Wa~ granted by
he Supreme Court 10 review me SAM VOID
ctIon II the Court of Appeal, 81 the I'm 81
september. 1874, near s"NcriCcn month";
iter il, jurisdiction had expired; and upon
he hearing the supreme Court reversed
hat action and sent down IL mandate %
he Court Of Appeal. 10 issue the Wnt
/. hlch It bad refused.
The Court OF Appeals respectfully de-
lined 10 comply with the mandatc And
n such declinatiOn the writer l. OF opinion
hat It was clearly right. But here 1gilD,
lot for The reasons II assigned Tor ~ The
writer's judgment the reasons assigned for
eciniDg 10 comply with the mandate
hough true in Themselves. and applicable
With redoubled force if placed upon the
,a,is OF original want Of jurisdiction when
he petition for the writ ~as presented %
he court in 1874, constituted no objection
o the Federal Jurisdiction, had due ace
ion been taken in time limited by liN
o bring that jurisdiction In active exist
nee and operation. In brief, The reasons
ssigned for not assuming The iuu'dlc-
ion TO Issue the writ were that los The
efusal Of the writ at Stanton upon tur
round thar the judgment below was
plainly right " that judgment bad become
reversible and placed beyond thc iun'dIc'
ion Of the Court Of Appeal. because no
Dther petition under the statute could hc
q %
.ase had at mo time been pen ling cause
n that court; that more thtn TWO ven,
laying elapsed since the Is b Of April. ~
il was then lsS0), II the VII we're above"
L that time, 10 process could l'su,' "' "I
Of rho l,,y be Untitled n issued,