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

Appeals OF April, 1880. 10 take further &C.
ton In tho matter was based upon that
JUDGMENT a. an act Of The Court of Ap.
peals Of the 12,h day 81 September. 1874 !;
for the opinion of Mr.. Justice Field states
that "the judgment was rendered on the
18th day OF April. 1871, aud the petition
for the Supersededs with the record was
not presented to tue Court OF Appeals and
delivered to the clerk until the 18th Of
September, 1874"
IL Is clear, then, that the only action OF the
Court Of Appeals RENEWABLE, or which was
reviewed by The Supreme Court, was the
judgment OF refusal Of the writ rendered
and entered on the 18th day Of September,
1874
The validity OF the action OF both courts
must therefore depend upon the legal char
acfer OF said action OF the Court Of Appeals.
Ii that action was taken In time-if the
court then had jurisdiction to pass judy
ment upon The subject--certainIy II must be
conceded. under the authority OF the Louisa
X. X. cise in - Howard, and Of the Nc
Weigh cases in % Wallace and 90 L. 5. Re-
ports, ABOVE referred 10, which last cases
cite and approve that ease, that the order
refusing the writ was iud .ment OF affirm
ance OF the conrt below, which was within
the legitimate Jurisdiction Of the Supreme
Court for review.
III, on the Other hand, The court bad no
jurisdiction 10 consider the matter or take
any notice Of the petition except to dismiss
1t from its attention, then clearly its action
ia receiving and entertaining the petition
for the jursdictiODal purpose OF rtfusing 1t,
or, in other words, Of rcnderinga Judgment
Of afliymlnce against the plaintltfin order 10
give jurisdiction 10 the Supreme Court, was
simply and purely a nudity. judgment is
predicafed upon jurisdiction. and therefore
without jurisdiction there can he no judg-
meDt i'm legal sense. judgment without
jurisdiction is an absolute legal sole
cism and lmpOssibillty. And so in effect
has the Supreme Court often decided. Ju.
risdictiOn it has repeafedly defined TO be
"the power 20 hear and determine a cause"
United states rs. Ar'edondO, 6 Pet. 10;
Rhode Island rs. Massachusetts, II Pet,
rs.
Ii there be no power TO hear and deter
mine, nothing can be heard or determined
and If nothing is heard or determined,
there can be nothing TO be reviewed or re-
versed
But the juri>dic ioual question here is re-
solved into a SIMPLE question Of arithmetic.
II is decided by the lapse Of time and the
logic OF y ears jurisdiction existed in the
Court Of Appeals 10 receive the petition
within two years from the rendition OF the
judgment. Three wears and nearly five
months had expired before the petition was
presented.
The case was therefore at no time. in any
sense. pending cause in The court. In
the sense in which, under the statute Of
Virginia giving jurisdiction 10 the Court OF
Appeals. such an expression could be used,
any such suggestion would be an absurdity.
A case can never be a pending cause in that
court except upoD appeal, writ Of error, OF
SuperSededS first allowed. then issued, exec
cuted, and returned. Here no other writ was
ever allowed. and OF course no step was
ever taken 10 make the use pending cause |
~ the court. And the attempt, by obtain. |
lng refusal OF the writ by the court 10 |
make it pending cause for the jurlsdic- |
iiona purpose Of bringing into activity the |
reviSory power OF the supreme Court, was,
a, has been shown, futile and void. the ac
ton Of The State court being merely cOrdm |
non judice from lapse of jurisdiction.
The reason assigned by the Court Of APP |
peas was that the judgment below wa,
- plainly right" If the court on the l2th |
day OF September, 1874, had jurisdiction 10 |
receive the petition and act iudicillly upon |
il, the reason assigned Tor refusing It's
PRAYER would have been material; for the |
court would then have passed judlclalIy |
upon a Federal question. and adversely To |
the claimants. But the court not having had |
jurisdiction ut that time 10 take any notice |
Df the petition, no number or manner OF |
reasons, right or wrong, that might have |
been assigned for refusing the writ could |
possibly alter the fact. In the absence OF |
power to act at all ii was quite immateria |
what or whether any reason was assigned |
for not acting a was required. C0nccde |
hat the reason assigned was erroneous. The |
lctOn OF the court was nevertheless IN itself |
clearly right. 1t then had nothing to do |
with the matter one way or another. II was |
IT that time and long had been .functUS OF. |
fciO, and its action as judicial proceeding |
was wholly void.
The only escape from this conclusion lies |
m the suggestion, which NAV Ne made, that |
he action Of the court on the 12th day OF |
September, 1874. is not to be considered a.
an action OF hat day, but as judgment OF
refusal OF the writ rendered in time in
Richmond at the March term OF 1873, and
Ormaly entered nunC pro time at Staunt0n,
md to take effect by relation to the term at
which il should have been entered. But
he answers to this view are numerous and
In the first place, the entry
made at StauntOn showed nothing OF the
kind. II speaks "a an act OF that day alone.
It recites that the petition was presented on
hat dly and refused on tbrt day =; and it
has been seen that The Supreme Court based
all Its own action upon the in lgment OF the
Court OF Appeals rendered and entered on
he 18th day OF September, 1874; and the |
Court Of Appeals itself, In considering the
lction OF the supreme Court, has made no
ntimatiOn that its own action was
% be considered As done on any other /
lay than the 18th day OF September, 1874.
10 was the same petition in point OF fact
which had been presented and acted upon
IN Richmond. But il 1t had ever been be-
lore presented to the court QnStead OF TO the
udges), which there il nothing TO show,
but, on the contrary, everything to suggest
he absence OF the fact, the mo- ion at StauD-
on to receive and entertain II the second
line was new and distinct motion, and |
stood upon its own merits as 10 the law.
facts, and rights then existing. But so far
IS the record disclOses. and TO that we are
confined 10 ascertain the judicial action OF
the court, the motion made on that day 10 |
he court to receive the petition and grant
t. prayer was the first and Only motion for |
that purpose which was ever made TO the |
court. And accordingly, as has been seen,
The order or judgment entered by the court |
purpOrts, and is expressed upon its face, TO |
be the judicial action Of the court as OF that |
day. and was clearly 80 understood and In-
tended 10 be by the court and The counsel |
who presented the petition and made the
motion. A judgment nunc pro tune
would indeed, under the circumstances,