Westhus v. Union Trust Co. of St. Louis

• Decision Date: 01 March 1909
• Docket Number: 2,654.
• Citation: 168 F. 617
• Parties: WESTHUS et al. v. UNION TRUST CO. OF ST. LOUIS.
• Court: U.S. Court of Appeals — Eighth Circuit

168 F. 617

WESTHUS et al. v. UNION TRUST CO. OF ST. LOUIS.

No. 2,654.

United States Court of Appeals, Eighth Circuit.

March 1, 1909

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

PER CURIAM.

It is now urged that we are bound by the judgments of the Supreme Court in Eidman v. Tilghman, 203 U.S. 580, 27 Sup.Ct. 779, 51 L.Ed. 326, and the other cases like it. In other words, it is claimed that, when an affirmance of a judgment results from an equal division of the Justices of the Supreme Court who participate in the hearing, it not only conclusively settles the particular case as between the parties and their privies, but also establishes a principle of law to be followed by inferior courts in subsequent cases.

That seems to be the rule in England. In Regina v Millis, 10 Cl. & Fin. 534, 8 Jur. 717, an indictment for bigamy involved the validity of a marriage without the presence of a person in holy orders. A jury at the assizes found a special verdict setting forth the facts, and the cause was then removed by certiorari to the Court of Queen's Bench in Ireland. The Justices of that court were divided in opinion, but to obtain a review in the House of Lords one of them withdrew, and the accused was thereupon acquitted. In the House of Lords the question put, according to the custom, was whether the judgment complained of should be reversed, and it appeared the votes were equal. 'Whereby, according to the ancient rule in law 'Semper praesumitur pro negante,' it was determined in the negative. Therefore the judgment of the court below was affirmed and the record remitted. ' Shortly afterwards Regina v. Millis was recognized in the Court of Exchequer as binding authority for the doctrine that a valid marriage can be contracted only in the presence of a clergyman in holy orders. Catherwood v. Caslon, 13 M. & W. 261. Later the House of Lords had occasion again to consider the question, and also whether the only clergyman present, being the bridegroom, could perform the ceremony. The former decision in Regina v. Millis, so far as it went was recognized as establishing a principle binding not only upon all inferior tribunals, but upon the House of Lords itself, and it was said that to change it the house would be arrogating to itself the right of altering the law and legislating by its own separate authority. Beamish v Beamish, 9 H. L. Cas. 274.

In London Tramways Co. v. London County Council, 67 L.J. 559, 561, Beamish v. Beamish was again approved in the House of Lords. The Lord Chancellor, in answering what he termed a very ingenious argument of counsel that the prior decision might have proceeded upon an omission to notice an act of Parliament, or the court might have acted upon an act of Parliament afterwards found to have been repealed, said that would be a case of a mistake of fact, and that the case subsequently arising would not be embarrassed by the mistake of fact in the prior one. That answer could not be made in this country.

It is an interesting coincidence that the same question, whether there could be a valid marriage contract per verba de praesenti, arose in the Supreme Court of the United States about the same time Regina v. Millis was decided in England, and the Justices of that court were also equally divided in opinion. The judgment of the Circuit Court was reversed because of the erroneous exclusion of evidence, but it was said that because of the division no opinion could be given upon the other question above mentioned. The weight of opinion in this country is that a judgment of affirmance by a divided appellate court conclusively settles the rights of the parties in the particular litigation, but does not establish a precedent in the court which renders it, and does not control inferior tribunals in other cases.

In Etting v. United States Bank, 11 Wheat. 59, 78, 6 L.Ed. 419, Chief Justice Marshall, speaking for the court, said: 'In the very elaborate arguments which have been made at the bar, several cases have been cited which have been attentively considered. No attempt will be made to analyze them, or to decide on their application to the case before us, because the judges are divided respecting it. Consequently the principles of law which have been argued cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it.'

In Durant v. Essex Company, 7 Wall. 107, 19 L.Ed. 154, it is said that the result of a divided court is due to the fact that it is the appellant or plaintiff in error who is the moving party, and that it is affirmative action which he seeks. The question presented is whether the judgment or decree shall be reversed, and if the judges are divided no order can be made, and the action of the court below must remain in force. It was also said that the settled practice in such a case was to enter a judgment of affirmance, but that it was only the most convenient mode of expressing the fact that the cause was finally disposed of in conformity with the action of the court below, and that that court could proceed to enforce its judgment. 'The legal effect would be the same if the appeal or writ of error were dismissed ' In referring to the statement, which always accompanies such a judgment, that it is rendered by a divided court, Mr. Justice...