Evening star. [volume] (Washington, D.C.) 1854-1972, 1889-02-07
IMPORTANT LEGAL POINT.
A Question as to the Trial Of Civil Cases
by the Criminal Court.

In Circuit Court, division 2, Judge Mont
gomery, very interesting point was made this
morning. Chief Justice Bingham, holding the
January term Of the Circuit Court, finding q
large calendar before him and being appraised
that the criminal business was well up had re-
ferred the cases from Nos. 800 to 400 to Judge
Montgomery for trial by the jury of the Grim
nal Court This was done under q section Of
the act Of 1874, but since this arrangement was
carried into effect there have been doubts ex-
pressed a. to whether. under the statutes
there Is authority for using the jury Of the
Criminal Court for civil business. 1t is claimed
that the section Of the act of February Is 1879
which provides for ordering an additional Cir
cult Court. repeats the section of the act Of
acted.
The point was raised to-day in the case Of
Gen. W. W. Averill against the Second national
BANK by Mr.. W. F. Mattingly. He stated that
no one was more DESTROYS for the expedition Of
business than he, but 1t was question of the
utmost Importance. and il the court be without
jurisdiction the effects would be serious. He
had examined the question with much care,
and came to the conclusion that the court was
without Jurisdiction. He made the motion
that the court do not proceed. for the reason
that it had not Jurisdiction, and
he cited the sections of the act
OF 1873, which contains O repeating clause. The
! act OF 1874 was a most extraordinary one he
said giving power to the justice of one subor-
dinate court to try certain class Of cases. he
claimed that the act of 1879 repealed the act of
1874, and he also read the section of the act of
June, 1880, in reference to the trial Of criminal
! cases by the Circuit Court where the power is
explicitly given as respects the jures. noting
the fact that the act Of 1879 providing for an
additional Circuit Court, provides for the draw
ing of juries for that court. He submitted that
the interests involved were important and that
under the order of reference as made the court
was without Jurisdiction.
Mr.. H. E. Davis said that it seemed to him,
IN view OF the statutes read, that il was the
intention OF Congress to supersede the act of
1874 He submitted that the question be taken
to the General Term.
JUDGE MONTGOMERY SAID
that the motion would be granted as a matter
OF course, although the court was not so GER
tain as the counsel. He was quite sure that
the judgments of the court could not be at
tackled collaterally. The court had the power
to hold court across the hall. and the only
question. it seemed, was the eligibility of the
jury. They could not be attacked collaterally.
but could be by challenge When the Jury is
not challenged he did not see how the judg-
ments could be invalidated
Mr.. Mattingly said that the record would
show justice holding criminal term trying
civil causes Win criminal jury under autnOr-
ity of law.
The court said that his opinion was some
what hastily formed. The court assumed TO
be sitting in control of a portion of the calen-
dar Of justice holding the Circuit Court. The
effect OF granting this motion was to remand
1t and leave his case on the calendar.
SIMILAR ACTION IN OTHER CASES.
The counsel in number of cases took SINH
lar action, each side consenting Among these
were the cases of Love agt. the National Net
ropolitan bank, Potts agt Washington National
baseball club, and Robinson agt. Stohl.
ONE CASE ON TRIAL.
In the case of Larabee agt. Simpson. Mr. APP
pleby, for the defendant made a similar mo-
ton, but Mr.. Job Barnard for the complain
ant. said he was ready for trial, and objected
The court held that it was competent for the
court to try the case. and overruled the mo-
ton.
A jury was empanneled, and the defendant
challenged the array on the ground that they
were summoned for the trial of criminal cases.
and as such had no right to try the issues of
fact involved
The court overruled the challenge. and. an
exception having been noted, the trial pro-
ceeded.