The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1904-10-12
MANDAMUS OF JUDGE
MORRIS is ARGUED
Proceedings to Compel Him to
Try Suit Against Duluth
Heard by Court

Three judges of the United States
circuit court of appeals yesterday
heard the arguments in the now fam
Judge Page Morris, of the United
States circuit court, to vacate a stay
of proceedings in the case of the Bar
Der Asphalt company against the city
of Duluth, and to bring the case to trial
without waiting the determination of
a similar suit now pending in the state
courts.
The court of appeals took the case
under advisement, reserving it's de-
cision. Judge Morris was not present
at the hearing, which was before
Judges W. H. Sanborn, Willis Van
Devanter and w. C. Hook.
An important point raised by the
city. Of Duluth is that the court of ap-
peals is without jurisdiction. B. Fes-
Ter, city attorney of Duluth, argued
that the court of appeals is without
jurisdiction in any case in which no
appeal is pending before the court Or
in which the question decided by the
lower court is not renewable by ap-
peal to the circuit court of appeals.
Alleges Lack OF JuFISUiCLlOn
The defendant city contended that
the mandamus was a direct proceed
ing to compel the lower court to pro-
coed to trial, and that the only court of
competent jurisdiction is the United
States supreme court.
Carl Taylor, counsel for the Barber
Asphalt company, on the other hand,
argued that the United States circuit
court of appeals has jurisdiction to
issue a writ of mandamus in any case
whose final Judgment is reversible by
the circuit court of appeals.
The question of Jurisdiction settled,
then the question arises whether the
circuit court has the right to proceed
to try a suit brought while suits in
volving the same question are pend
ing between the same parties in the
state courts. Mr.. Taylor argued in
support of the contention that the cir
cult court was not exceeding its au-
thority, while Mr.. Fesler submitted that
the state court must have precedence
because of the priority Of it's suit.
Taxpayers Start Litigation
The unusual proceeding brought
against Judge Morris involves the trial
in the United States circuit court of
claims held by the Barber Asphalt
for paving. One contract was for $685.
600. and the other for $4,000. The city
council was willing to make payments
on the work, but taxpayers, under the
Duluth city charter, interviewed and re-
sisted payment on the ground that the
city council had exceeded it's author
ity to enter into contract when it
had not funds at hand in the perma-
nent Improvement fund to pay for the
expenditure.
While a case was pending in the
state courts, in which the Barber COM
pany insists it was not a voluntary
plaintiff, the company instituted suit
in the United States court to enforce
collection Of it's claim. The city of Du-
luth, preferring to try the case in the
district court of it's own county, asked
and secured a>stay of proceeding from
Judge Morris until the state case could
be determined. The Barber company
brought the mandamus proceeding to
force Judge Morris to hear its case
without waiting results in the state
court.
The points raised in the arguments
yesterday, and especially that ques-
tioning the Jurisdiction of the United
States circuit court of appeals, are in
teresting to attorneys No such case,
it is said, has ever peen brought since
the creation of the circuit court of ap-
peaIS in 1891.