164 F. 324 (2nd Cir. 1908), 218, United States v. New York Cent. & H.R.R. Co.

Docket Nº:218.
Citation:164 F. 324
Party Name:UNITED STATES v. NEW YORK CENT. & H.R.R. CO. et al.
Case Date:June 25, 1908
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 324

164 F. 324 (2nd Cir. 1908)



NEW YORK CENT. & H.R.R. CO. et al.

No. 218.

United States Court of Appeals, Second Circuit.

June 25, 1908

Henry L. Stimson, U.S. Atty. (Felix Frankfurter, Asst. U.S. Atty., of counsel), for the United States.

Austen G. Fox and John D. Linsay, for defendant in error.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

NOYES, Circuit Judge.

In May, 1906, Fred L. Pomeroy, an officer of the New York Central & Hudson River Railroad Company, was indicted in the Circuit Court for offering, granting, and giving a rebate in violation of the so-called 'Elkins Act.' Act Feb. 19, 1903, c. 708, 32 Stat. 847 (U.S. Comp. St. Supp. 1907, p. 880). At the October term, 1906, for the trial of criminal causes, he was tried, convicted, and fined $6,000; the judgment being docketed at the time. Afterwards he died. In March, 1907, and after the final adjournment of the October term, the Circuit Court, upon the application of defendant

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in error, as executrix of the will of said Pomeroy, entered an order declaring said judgment to have abated and to be no longer of any validity.

The United States has taken the present writ to review such order.

At the outset the defendant contends that the government has no right to proceed in this way; that a writ of error can be sued out by the United States in a criminal case only to the Supreme Court, and to that court only in particular instances. The right of the government may be so limited in criminal cases. But this is not a criminal case. The issue in the criminal proceedings was the guilt of the accused. That issue had been determined before these proceedings were instituted. Indeed, the very occasion for these proceedings was the closing of the criminal case by the rendition of the judgment. Instead of being criminal in their nature, these proceedings constitute, in effect, a civil suit by the representative of Mr. Pomeroy's estate to relieve it from the payment of the judgment, for a cause wholly apart from the question of his guilt or innocence. The contention that the United States has no standing to prosecute this writ is, therefore, not well founded.

The order declares the judgment of no validity. But when it was entered the court had lost control of the judgment. It was a final judgment, and the term at which it was rendered had expired before any steps...

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