Atherton Et Al v. Fowler Et Al

Decision Date01 October 1875
Citation23 L.Ed. 265,91 U.S. 143
CourtU.S. Supreme Court

MOTION to dismiss a writ of error to the Supreme Court of the State of California.

This is an action of replevin, brought in the District Court for the Fourth Judicial District of the State of California, to recover certain hay cut from lands in Solano County, to which the plaintiffs claimed title in consequence of rights alleged to have been acquired under an act of Congress entitled 'An act to grant the right of pre-emption to certain purchasers on the 'Soscol Ranch,' in the State of California,' approved March 3, 1863. 12 Stat. 808. The plaintiff having died pendente lite, his executors were substituted in his stead. The defendants denied the plaintiff's title, and averred that they, in good faith and under color of title, held the land adversely to his pretended claim. The jury found a verdict in favor of the defendants for the value of the hay in controversy, with interest thereon. Judgment was for the defendants for $13,896.43. The plaintiffs appealed to the Supreme Court of the State, which adjudged 'that the judgment be reversed, and the cause remanded, with directions to the court below to proceed to try the cause anew, unless, within twenty days after the filing of the remittitur in the court below, the defendants shall file with the clerk of that court a written consent that the judgment be modified by striking out the damages therein awarded, and inserting, in lieu thereof, the sum of $8,989; and, upon such consent being filed, it is ordered that the judgment be modified accordingly, and also that it be made payable in due course of administration.' The written consent of the defendants having been filed in the District Court, the judgment of that court was modified as ordered by the Supreme Court.

On the fourteenth day of July, 1875, the plaintiffs sued out this writ of error, directed to the Supreme Court of California. The writ bears test on the day of its issue, but contains no return day.

Mr. M. A. Wheaton for the defendants in error, in support of the motion to dismiss.

The State court having decided the case upon principles of law as recognized and administered in California, and without reference to the construction or effect of any provision in the Constitution or any act of Congress, no jurisdiction exists in this court to review that decision, even though, in some other aspect of the case, a Federal question might possibly have been applicable, but upon which the State court did not pass. Insurance Co. v. The Treasurer, 11 Wall. 209; Klinger v. Missouri, 13 id. 263; West Tennessee Bank v. Citizens' Bank, id. 432; Caperton v. Bowyer, 14 id. 216; Commercial Bank v. Rochester, 15 id. 639; Marquez v. Bloom, 16 id. 351; Crowell v. Randall, 10 Pet. 397; Farney v. Towle, 1 Black, 351; Boggs v. Mining Co., 3 Wall. 304; Maxwell v. Newbold, 18 How. 516; Hoyt v. Sheldon, 1 Black, 522.

A judgment of the highest court of a State reversing that of an inferior court, and awarding a venire de nove, is not a final judgment in the sense in which that term is used in the statute authorizing a review thereof by this court. Tracy v. Holcombe, 24 How. 426; Miners' Bank v. United States, 5 id. 214; Brown v. Union Bank, 4 id. 465; Weston v. Charlestown, 2 Pet. 449; Winn v. Jackson, 12 Wheat. 135; Houston v. Morse, 3 id. 434.

A judgment remanding a case to a lower court for further proceedings in accordance with the opinion is not such a final judgment. Pepper v. Dunlap, 5 How. 52; Moore v. Robbins, 18 Wall. 588; St. Clair v. Livingston, id. 628; Parcels v. Johnson, 20 id. 654.

If there has been any final judgment in this case, it must have been rendered by the District Court; to which, therefore, the writ of error should have issued. Gelston v. Hoyt, 3 Wheat. 304; Webster v. Reid, 11 How. 457; Miller v. Joseph, 17 Wall. 655; McGuire v. The Commonwealth, 3 id. 386.

Under the Judiciary Act of 1792, a writ made returnable on any other day then the first day of the next ensuing term was held void. Conklin's Treatise, p. 635; Insurance Co. v. Mordecai, 21 How. 200; Porter v. Foley, id. 393; Agricultural Co. v. Pierce County, 6 Wall. 246; Rules of S. C., No. 8, Subdivision 5.

It was held, prior to the act of June 1, 1872, that this court had no power to amend the writ in this respect. Vide cases cited above. Hodge v. Williams, 22 How. 88; City of Washington v. Denison, 6 Wall. 496; Hampton v. Rouse, 15 id. 684.

The date of test of the writ is not a day of a term of this court. No application to amend being made, it is ground for dismissal. Conklin's Treatise, p. 634; 2 Abbott's U. S. Practice, p. 251.

Mr. Montgomery Blair, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

The plaintiffs in error claimed title to the hay in controversy in this case in consequence of alleged rights acquired under the act of Congress, passed March 3, 1863, entitled 'An act to grant the right of pre-emption to certain purchasers on the 'Soscol Ranch,' in the State of California.' 12 Stat. 808. The decision of the State court was against their title. This presents a question within the jurisdiction of this court.

The judgment of the Supreme Court is the final judgment in the suit, within the meaning of the act of Congress. Rev. Stat. 709. It reversed and modified the judgment below, and did not permit further proceedings is the inferior court, if the defendants consented to the modification directed as to the amount of damages. This consent has been given, as the record shows; and the judgment of the court below is the judgment which the Supreme Court directed that court to enter and carry into execution. The litigation was ended by the decision of the Supreme Court. No discretion was left in the court below if the required consent was given.

The writ of error was properly directed to the Supreme Court of the State. We can only re-examine the 'final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had.' Rev. Stat. sect. 709. For the purposes of such a re-examination, we require the record upon which the judgment or decree was given, and we send out our writ of error to bring it here. That writ is to operate on the court having the record, and not upon the parties. Cohens v. Virginia, 6 Wheat. 410. The citation goes to the parties, and brings them before us. The writ of error, therefore, is properly 'directed to the court which holds the proceedings as part of its own records, and exercises judicial power over them.' Hunt v. Palas, 4 How. 590. If the highest court of the State retains the record, the writ should go there, as that court can best certify to us the proceedings upon which it has acted and given judgment. As it is the judgment of the highest court that we are to re-examine, we should, if we can, deal directly with that court, and through it, if necessary, upon the inferior tribunals. It is, perhaps, safe to say that a writ will never be dismissed for want of jurisdiction, because it is directed to the highest court in which a decision was and could be had. We may not be able in all cases to reach the record by such a writ, and may be compelled to send out another to a different court before our object can be accomplished; but that is no ground for dismissal. We have the right to send there to see if we can obtain what we want.

But, in some of the States,—as, for instance, New York and Massachusetts,—the practice is for the highest court, after its judgment has been pronounced, to send the record and the judgment to the inferior court, where they thereafter remain. If in such a case out writ should be sent to the highest court, that court might with truth return that it had no record of its proceedings, and, therefore, could not comply with our demand. Upon the receipt of such a return, we should be compelled to send another writ to the court having the record in its possession. It has been so expressly decided in Gelston v. Hoyt, 3 Wheat. 246, and McGuire v. Commonwealth, 3 Wall. 382. So, too, if we are in any way judicially informed, that, under the laws and practice of a State, the highest court is not the custodian of its own records, we may send to the highest court, and seek through its instrumentality to obtain the record we require from the inferior court having it in keeping, or we may call directly upon the inferior court itself. But if the highest court is the legal custodian of its own records, and actually retains them, we can only send there. This, we think, has always been the rule of practice, notwithstanding Mr. Justice Story, in delivering the opinion of the court in Gelston v. Hoyt, said that the writ might be 'directed to either court...

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    ...of certiorari would, therefore, have to be directed to that court if it had possession of the record to be reviewed. Atherton v. Fowler, 91 U. S. 143, 146, 23 L. Ed. 265. The petition in error as of right was necessarily accompanied by a transcript of the final record in the Court of Appeal......
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