The Saint Paul globe., 1905-03-14
0BRIEN LAYS DOWN
LAW In THE CASE
Continued From First Page

them. Once the time to appeal expires
the city will be absolutely bound by the
decision. No settlement should have been
ii lnaoe Win the street car company based
upon the idea of this decision standing for
SIX months or three years or for any time
Ihe decree in this case should have been
vacated as preliminary TO any settle
ment. The city had one right which could
not be taken away from il and that was
the right of appeal. This should have
Deen exercised. If the present agreement
taxes away this right of appeal then the
city has. lost the valuable and strategic
point OF the whole situation.
An appeal from the decree in question
must De taken within six months after the
entering OF the judgment The circuit
court or appeals of the United States in a
decision made as late as last March saws:
ne law gives six months after the en-
try OF the Judgment in which to issue the
VIII OF error or take an appeal. This
provision as to time is absolute The
Ilgnl Is strictly statutory. The time for
sselng ssend; 2nt the r writ or taking an appeal
parties nor by the order of the court"
Inc advocates OF the present agreement
say that the agreement does not waive the
right OF appeal. Here is what the agree
ment says:
In case the ST. Paul City railway COM
pany, Its successors, ETC. shall fail to
ABIDE by, carry out and fulfill any of the
that event the city shall have the right at
any time within the next three years from
THIS time TO apply to said United States
circui, e court and have the above men
TONED decree In said action vacated and
set aside; so that 1t may again be re-
entered, and thereby restore to said city
ITS right OF appeal on said decree: and
IN that event its right OF appeal and TO
have said decree reviewed and passed
upon by higher court shall be restored
lists"
1t is not necessary that a person should
study law, in order to see that
this stipulation does nothing more
dnan attempt to extend the. right
cree may be vacated $50 that Il may again
be reentered and thereby restore TO the city
its right OF appeal" When it is ap-
parent from the agreement that the only
purpose of vacating the decree is to at
once reenter the decree over again for the
purpose or restoring the right OF appeal
there can be no doubt at all that any
court would treat the agreement as a mere
attempt at best to extend the time for
appeal. Even if the circuit court, not a
party TO this agreement or settlement,
should make itself the instrument of car
rying out this private agreement between
: the city and the railway company the
United States supreme court would not
regard the second decree as anything
else than a mere subterfuge and would not
take jurisdiction of an appeal from IL. Be
sides all this, do not think that the local
federal court would go through any such
hocus pocuS to set aside Its decree for
the purpose Of entering a precisely SINH
lar one, TO facilitate an appeal under the
agreement. But suppose the circuit court
was willing to become party to this
strange practice, how would the city make
its rights effective? II ii appeared before
the local court within the three years
and claimed the railway company had
broken its agreement il Is certain that the
railway company would not admit that 1t
had done so. Therefore, the default OF the
company would have to be proved. How
would this be. done? 1t could not be done
In the original suit because ii would be
entirely outside the issues. / know of
no way. and do not think that any way
can be found by which the matter could be
settled under the agreement as to whether
or not the railway company had so vio-
lated its terms. Again. this agreement
upon it's face only pretends to preserve
the city's right OF appeal for three years.
at all and II 1t can be preserved at all II
seems to me IL should exist as long as
the agreement exists
A severe blow to the adherents in
the assembly of the proposition to test
the legal status of the agreement has
been. dealt by the inability of Assem-
blyman Schiffmann to reach st. Paul
from Los Angeles in time for the
meeting of the assembly.
i DR.. Schiffmann was so much in Ia
vor of resembling the compromise that
he telegraphed from Los Angeles, Cal,
where he is spending the winter, that
he would be back by Thursday MORN
ing, March 16. Yesterday the follow
ing telegram was received from him
by The Globe:
"Washouts prevent my leaving for
several days. Too late now. Fresh
start Notify O'Brien, Powers, Regan.
Yoerg and Keller"