Carper v. Fitzgerald

Decision Date28 March 1887
Citation7 S.Ct. 825,121 U.S. 87,30 L.Ed. 882
PartiesCARPER, Jailer, ect., v. FITZGERALD
CourtU.S. Supreme Court

[

R. A. Ayers, for appellant.

Wm. L. Royall and D. H. Chamberlain, for appellee.

WAITE, C. J.

This was a proceeding before the circuit judge for the Fourth circuit, at his chambers in Baltimore, Maryland, for the discharge of Richard L. Fitzgerald from the custody of H. A. Carper, jailer of Pulaski county, Virginia, under a mittimus from John H. Cecil, a justice of the peace of that county. The petition was presented to the judge in Baltimore, who directed the clerk of the circuit court for the Eastern district of Virginia to issue a writ of habeas corpus, and make it returnable before him at the United States court-house in Baltimore. The writ was accordingly issued, under the seal of the court, in the usual form of circuit court writs, and made returnable 'before the Honorable Hugh L. Bond, judge of our circuit court of the United States for the Eastern district of Virginia, sitting at the United States court-house in Baltimore, Maryland.' The record shows that the jailer made his return to the writ, and that the petitioner filed a demurrer thereto, upon consideration of which an order of discharge was entered. At the foot of this order was the following:

'And it is ordered that the papers in this case be filed in the circuit court of the United States at Richmond, Virgii a, and that this order be recorded in said court.

HUGH L. BOND, Circuit Judge.'

From this order the jailer was allowed an appeal to this court by the circuit judge, and the case was docketed here as 'an appeal from the circuit court of the United States for the Eastern district of Virginia.' The form of the docket entry here does not change the character of the proceeding from which the appeal was taken, and that was clearly under section 752 of the Revised Statutes, before the judge sitting as a judge, and not as a court. The act of March 3, 1885, c. 353, (23 St. 437), gives an appeal to this court in habeas corpus cases only from the final decision of a circuit court. The order of the judge that the papers be filed, and his order recorded in the circuit court, does not make his decision as judge a decision of the court. Neither does our rule 34, (117 U. S. 708, 6 Sup. Ct. Rep. iii,) adopted at the last term, have that effect. The purpose of that rule was to regulate proceedings on appeals under section 763, from the decision of a judge to the circuit court of the district, as well...

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24 cases
  • City of Greenwood v. Humphrey & Co., Inc
    • United States
    • United States State Supreme Court of Mississippi
    • May 23, 1938
    ...... congressional contemplation. . . Town of. Andes v. Slauson, 130 U.S. 435, 32 L.Ed. 989, 9. S.Ct. 573; Carper v. Fitzgerald, 121 U.S. 87, 30. L.Ed. 882, 7 S.Ct. 825; McKnight v. James, 155 U.S. 685, 39 L.Ed. 310, 15 S.Ct. 248; Lambert v Barrett, . 157 ......
  • Miskimmins v. Shaver
    • United States
    • United States State Supreme Court of Wyoming
    • September 18, 1899
    ...37 id., 231.) (4) the order was not a court order, but was made by the district judge in chambers. Hence no appeal lies. (Carper v. Fitzgerald, 121 U.S. 87; Broadwell Com., 32 S.W. 141 (Ky.); in re Perkins, 2 Cal. 424; in re Ring, 28 id., 248; Hammond v. People, 32 Ill. 446; ex parte Thomps......
  • Compton v. Jesup
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 2, 1895
  • Rosenberg v. United States Appendix
    • United States
    • United States Supreme Court
    • June 17, 1953
    ...793, 800, 87 L.Ed. 1014, in connection with Lambert v. Barrett, 157 U.S. 697, 15 S.Ct. 722, 39 L.Ed. 865, and Carper v. Fitzgerald, 121 U.S. 87, 7 S.Ct. 825, 30 L.Ed. 882.' 12 See, e.g., Land v. Dollar, 1951, 341 U.S. 737, 71 S.Ct. 987, 95 L.Ed. 1331; Johnson v. Stevenson, 1948, 335 U.S. 80......
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