The Washington times., 1902-06-09
Legal Profession Stirred
Over Decision of Court
of Appeals.
REFERS TO REPEATING CLAUSE
Of Far-Reaching Import
ance, 1t May Affect Di-
Vorce Suits.
JOHN F. COSTELLO LOSES
Is Remanded to Custody of United
States Marshal Palmer for an Al
legged Fraudulent Conveyance OF
Property to Delay and Hinder Law.

property to Delay ana hinder Law.
The recent decision of the Court of
Appeals for the District in the case
of Costello. appellant. against Aulick
Palmer, marshal. has created consider
able interest among the members of the
legal profession, for it is the first utter
ance of the Appellate Court upon the
construction of the repeating clause of
the code The decision is far-reaching
in its Importance, for it bears upon the
question as to what is the true state of
the law with reference to divorce suits
pending prior to January /, 1902.
The decision itself is interesting. for
the effect OF it is that the appellant is
remanded to the custody OF the marshal
for Imprisonment for an alleged fraudu-
lent conveyance of property to delay and
hinder, as it is charged by the plaintiff.
the collection of a judgment recovered
against Costello.
The opinion was rendered by Justice
Morris, speaking for a unanimous court.
and deals extensively with the question
of that is embraced within the term
substantial rights" which are sa' j
by the code, and in the determination
OF such rights the old law applies.
What Code Provides.
Section 1858 of the code provides:
THE repeal by the preceding section
OF any statute, il whole or in part, shall
not affect any right done, or any right
accruing or accrued, or any suit or pro-
ceeding had or commenced in any civil
action before such repeal. but all rights
and liabilities under the statutes or
parts thereof so repealed shall con-
tinue and may be enforced in the same
manner as if repeal had not been made.
Provided. That the provisions of this
code relating 10 procedure or practice,
and not affecting the substantial rights
OF parties, shall apply to pending suits
or proceedings, civil or criminal"
There has been considerable con-
trariety of opinion among the members
of the bar since the enactment of the
code, as TO whether divorce suits pend
ing prior TO January l. 1902 should be
decided according 10 the old Law. o. ii
the provisions Of the code apply. Two
main questions are involved. frs.
whether section 1893 saving Substantial
rights" apply to divorce suits, and sec
ondly, are such proceedings suits"
within the meaning of the code.
Recalls Hagner Decision.
1t will be recalled that the decision
of Justice Hagner, of the District Su-
preme Court, rendered short time ago,
denied the right Of complainant in a
divorce suit TO relief holding that di
vorce suits pending when the code vert
into effect, were not to be determined
according to the old law
The decree dismissing the bill has
been appealed from, and is now pend
ing in the Court of Appeals. The deci-
sion of the Appellate Court in the Cos
teilo case bears directly upon the
vexed question. and is construed by
members Of the bar who have consider
ed It as a forerunner Of what may be de-
cided in the divorce suits. 1t is thought
that the Court of Appeals. in the light
OF the Costello case. may decide that
divorce suits pending prior to January
I. 1902. are saved and are to be now
determined according to the old law.
In the argument before the Appellate
Court in tn Costello case, Messrs.
Henry e. Davis and Crandall Mackey
appeared for Costello. and Attorney Levi
II. David represented the marshal. The
court below was sustained in its ruling,
and the judgment was affirmed.
The effect OF the Costello decision is
that the defendant is remanded TO the
custody of the marshal.
On May .. 1901. the Bokel- Gywnu Nc
L.
tuted a suit before a justice OF the
peace in this District to recover debt
due by John f. Costello. Judgment was
entered for the plaintiff. and a certi
fed copy OF the same was filed in the
District Supreme Court
Thereupon, proceeding under sections
794 and 79J of the Revised Statutes Of
the United States relating to the Dis
trict of Columbia, which provided for
the arrest and detention of debtors frau
iulcntly conveying away their property,
the plaintiff company, on June y, 1901.
caused an affidavit OF its treasurer 10
be filed in the cstse, in which affidavit.
after the recital OF the institution OF the
suit. the rendition OF judgment. and the
flinS OF the latter in the Supreme Court
Of the District, set forth that after the
Institution OF the suit and before the
obtaining of the judgment. the defend
ant, John +. Costello, conveyed away,
lessoned and disposed OF his property.
rights and credits. as the plaintim be
Iieves and allant AYERS. with intent
thereby 70 hinder or delay the recover
II its debt that the said John
F. Costello conveyed all Of his interest
and estate in the property. which was
OF great value, to one Jeremiah 4.
Costello. his brother. Who. il was al
legged. had full knowledge and notice
OF suit the c0nsidora tion named in the
deed being SO"
Given a Writ.
Upon this affidavit, the plaintiff OBJ
tanned a writ OF capias ad satisfaction
DUN. addressed TO the marshal, direct
ing him 10 arrest the defendant.
After the arrest, Costello sued out
writ Ct habea, corpus. and the matter
came on fo- hearing before Chief jus
tice Bingham, who. on January % 1902,
dismissed the petition. and remanded
Costello TO the custody Of the marshal.
From the order demanding The defend
No. : Quality SHINGLES $3.50