Aspen Mining Smelting Co v. Billings

• Decision Date: 23 October 1893
• Docket Number: Nos. 918,919,s. 918
• Parties: ASPEN MINING & SMELTING CO. et al. v. BILLINGS et al. (two cases.)
• Court: U.S. Supreme Court

150 U.S. 31

14 S.Ct. 4

37 L.Ed. 986

ASPEN MINING & SMELTING CO. et al.

v BILLINGS et al. (two cases.)

Nos. 918, 919.

October 23, 1893.

Statement by Mr. Chief Justice FULLER:

This was a bill of complaint filed by James O. Wood and others against the Aspen Mining & Smelting Company and others in the circuit court of the United States for the district of Colorado on April 14, 1888, which resulted, upon final hearing on pleadings and evidence, in a decree, October 20, 1890,—one of the days of the May term, 1890, of the court,—dismissing the bill at the costs of the complainants. The record, after setting forth the decree, thus proceeds: 'And afterwards, and on, to wit, the 25th day of October, A. D. 1890, came again the said complainants by their solicitor aforesaid, and filed in said court, and in said cause, their motion for rehearing. And the said motion is in words and flgures as follows; to wit.' And then follows a lengthy application for rehearing duly indorsed as filed on that day. The November term, 1890, of the circuit court, began on the first Tuesday, being the 4th day of November, 1890, and adjourned on March 20, 1891. On April 26, 1891, the complainants filed in the cause a 'request for decision on motion for rehearing,' which recited that the motion had been submitted 'in open court at the beginning or very early in the last term.' The May term, 1891, opened on the first Tuesday, being the 5th day of Mary, 1891, and on that day the record recites that 'the motion for a rehearing of this cause having heretofore come on to be heard, and having been submitted upon briefs,' the court, being sufficiently advised, denied the motion. On the same day complainants prayed an appeal from the decree to the supreme court of the United States, 'which is allowed them, conditioned that they file herein their bond conditioned according to law in said appeal in the sum of three hundred dollars.' June 24, 1891, counsel filed a direction to the clerk to 'make out full record in the above-entitled suit for an appeal to the United States circuit court of appeals at St. Louis, Mo.,' stating what was to be copied. On July 2, 1891, one of the days of the May term, 1891, of the court, complainants prayed an appeal to the United States circuit court of appeals for the eighth circuit, and an order was entered vacating the order allowing an appeal to the supreme court of the United States, and allowing an appeal to the circuit court of appeals, conditioned upon the filing of bond in the sum of three hundred dollars, and on the same day such bond was filed and approved, together with an assignment of errors on appeal. Citation was issued August 15, 1891, and duly served From the records of this court it appears that the appeal was duly prosecuted to the circuit court of appeals, and the decree reversed July 5, 1892, and that thereupon the appellees petitioned for a rehearing, which was denied. The opinions of that court will be found reported in 10 U. S. App. 1, 2 C. C. A. 252, 51 Fed. Rep. 338, Id. 10 U. S. App. 322, 3 C. C. A. 69, 52 Fed. Rep. 250.

November 7, 1892, appellees on that appeal presented to this court their petition for a writ of certiorari under section 6 of the act of March 3, 1891, which was denied on November 28th.

December 21, 1892, the complainants filed in the circuit court a mandate from the United States circuit court of appeals for the eighth circuit, reversing the decree of the circuit court with costs, and directing the court to take fur- ther proceedings, and enter a decree in conformity with the opinion of said circuit court of appeals.

Objections on behalf of defendants Wheeler and the Aspen Mining Company were thereupon, on December 24, 1892, made to the jurisdiction of the circuit court to proceed further with the cause. January 13, 1893, these objections were overruled, and an application on behalf of the defendant Wheeler, that the question of jurisdiction be certified to the supreme court, was denied. The opinion is reported in 53 Fed. Rep. 561. The circuit court then January 24, 1893—entered a decree in pursuance of and in conformity with the directions contained in the opinion of the circuit court of appeals, in compliance with the mandate of that court. On March 21, 1893, an appeal was granted to the mining company and Wheeler to this court by one of the justices thereof, under the fifth section of the act of March 3, 1891. Bond to operate as a supersedeas was given as directed, and approved, and citation was issued and served. And in view of the allowance of the appeal the circuit court, on April 3, 1893, certified the question of the jurisdiction of the circuit court to make and enter the decree of January 24, 1893, or to proceed further in the case, to this court for decision. April 15, 1893, a short record was filed by appellees, and a motion made to dismiss the appeal, the consideration of which was objected to by counsel for appellants. The then number of the case was 1,325, and is now 918. On April 19th a full record was med by appellants, and the appeal docketed as No. 1,326, which is now 919. The motion to dismiss in No. 1,325 was postponed May 10, 1893, to the next term of this court, and counsel for appellees directed to serve notice of the motion to dismiss, and to embrace therein No. 1,326. This having been done, the motion to dismiss was submitted on briefs, coupled with a motion to affirm. At the same time a motion was made on behalf of appellants to advance No. 919 under the thirty-second rule, and for oral argument.

T. A. Green and Felix T. Hughes, for the motion.

Calderon Carlisle, opposed.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

By the thirty-second rule, as amended, (146 U. S. 707, 13 Sup. Ct. Rep. iii.,) cases brought to this court by writ of error or appeal under section 5 of the act of March 3, 1891, when the only question at issue is the question of the jurisdiction of the court below, will be advanced on motion, and taken on printed briefs or arguments in accordance with the prescription of rule 6 in regard to motions to dismiss writs of error or appeals; but, as this appeal will be disposed of on the motion to dismiss, an order to advance is unnecessary, and would, indeed, be superfluous, under the circumstances, in view of the motion to affirm.

Nor do we find sufficient reason for the allowance of oral argument in the character of the questions involved, nor in the solicitude of appellants' counsel to repel in that form suggestions in the briefs of counsel for appellees questioning the propriety of the application for the allowance of the appeal, as we perceive no ground calling for defense from imputation in that regard. It is sufficient to dismiss the remarks referred to with the observation that they are lacking in the courtesy and temperance of language due from the members of the bar, and as such obnoxious to animadversion. The condition of the record justified the application, and the allowance of the appeal, although, upon consideration, we are of opinion that it cannot be sustained.

The contention is that the appeal to the circuit court of appeals was unauthorized and void, because the allowance of the appeal to this court, May 6, 1891, vested in it exclusive jurisdiction of the cause, which could not be divested by a vacation of that allowance by the circuit court, and also because the original...