The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-11-26
CONFLICT OF AUTHORITY
A STATE COURT RESTRAINED BY
FEDERAL JUDGE.
SOME QUESTION AS TO JURISDICTION
Cases May Come Up in Supreme Court Only on
Appeal or Petition for Rehearing.
Has The Judiciary Been
Exhausted?

kNiduStcu
The noted suit of James VS.. the
Western North Carolina Railroad was
up again yesterday before the Supreme
court of North Carolina. on Il rule serv-
ed on the attorneys of the defendant
company n week ago ordering them to
appear and show cause why Il direct
order should not be issued for the exc
cution of the Judgment formerly rendered
by the Supreme court in favor of the
plaintiff, Mrs. James.
1t will be remembered that this case
grew out of an accident on the Western
North Carolina Railroad, in which En-
gineer w. a. Jones lost his life. Suit
was brought by Mrs. James in the
Rowan county Superior court, the jury
rendering verdict in her favor and
fixing the damages at $4,000. An ap-
peal was taken TO the Supreme court
and the Judgment affirmed, Subsequent
" the plaintiffs counsel began a suit i'll
Rowan county Superior court for the APP
pointment of a receiver for the Western
North Carolina Railroad, with a view
of levying upon such properties or eff
fects belonging to the defendant corpo-
ration as an inventory by such receiver
might ascertain Pending the hearing
of this case in the Superior court, the
defendants counsel applied to Judge
Simonton. of the United States district
court. for a restraining order. restrain
ing the plaintiff or her attorneys from
further proceedings in the matter of re-
ceivership, and Judge Simonton granted
the order. of course.
The proceeding yesterday was mo-
ton of the plaintiffs counsel asking the
State Supreme court to enforce its own
mandate direct and order it's own
marshal to proceed to the execution of
it's own judgment. And here comes a
clash it would seem, between the Su-
preme court of North Carolina and the
Circuit or Federal court.
In compliance with this order, Capt.
Charles Price. of Salisbury, one of the
defendants attorneys i'll the case, was
present at the opening of the court. to
make answer as directed The plaintiff
was represented by Judge A. c. Avery.
The burden of proof being on Capt.
Price, he had the opening and conclu-
sion. After stating the case and fol-
lowing it through the various courts up
to the present time, he read his answer.
In this he contended that the Supreme
court had no jurisdiction in the matter
before it; that there was no action or
proceeding in the court on which to
base motion for execution of judg-
ment'': that there is no judgment enter
ed on the records of the Supreme court
of North Carolina, which would entitle
the plaintiff to have such a motion: that
the judgment referred to was simply for
costs and these having been paid the
defendant company was discharged.
Answering further, Capt Price denied
that the judgment of the Supreme court
had in any way been interferred with
or in any manner INSTRUCTED
1.-THE present proceeding has not been
taken upon any judgment of this court
The only judgment ever rendered in
this court was a remand of the case to
the lower court. Therefore. there is
nothing on which this court can proceed
To bring the matter up here again it
must be done, either on appeal or on
application for a rehearing. Neither of
these courses having been taken | am
compelled to submit that my client is
entitled to have the order vacated and
the matter dismissed"
Judge Avery, in his argument, contend
ed that every tribunal having jurisdic-
ton to pronounce judgment has concur
rently the authority to award execution
for the enforcement of that judgment.
To this end appellate courts may issue
their mandates to inferior courts of gem
eral jurisdiction, or. as in the case of the
Supreme court of North Carolina, enter
the Judgment directly without delegat-
ing the authority to the lower court from
which the appeal is brought up The
power of the Supreme court is not, how
ever, exhausted by its delega ton to a
lower court.
For the enforcement Of it's DEGREES.
Judge Avery went on to say. the Con-
stitution has given this tribunal the pow
or to issue certiorari, mandamus or
other appropriate writs. Concurrently
with these remedial writs TO compel en-
forcement of it's judgments by lower
tribunals comes the right to issue any
remedial process necessary to prevent
interference with, or obstruction of the
process issued by the inferior courts.
such interference may come from n
judicial tribunal without authority. as in
this case from Judge Simonton, for the
law provides for no review of the or
ders of the highest court of the State.
except by writ of error, when its decision
is against right claimed under the
Federal Constitution, and the statutes of
the United States expressly forbid the
issuing of such injunction (Revised
Statutes of u. S., Sec. 700 Not only
has the Supreme court of North Caro-
lima authorized the issuing of wrts of
assistance. but it also has the power
TO issue wrlts of injunction to prevent
interference from any source with the
orders and mandates of the court
Replying to the statement of Mr.
Price that Judge Simonton still had
jurisdiction. given him by the Masters
sale in 1894, Judge Avery contended
that the decree of sale and the subse.
quent sale were final and ended SIMON.
tons jurisdiction. and that for this rea.
son he had neither authority nor excuse