Gregory v. Veigh

• Decision Date: 01 October 1874
• Citation: 90 U.S. 294,23 L.Ed. 156,23 Wall. 294
• Parties: GREGORY v. McVEIGH
• Court: U.S. Supreme Court

90 U.S. 294

23 L.Ed. 156

23 Wall. 294

GREGORY v. McVEIGH.

October Term, 1874

ON motion to dismiss, for want of jurisdiction, a writ of error to the Corporation Court of Alexandria, Virginia.

The case was thus:

Towards the close of the late rebellion, the United States filed a libel of information, under the act of 17th July, 1862, 'to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes'—the act commonly known as 'the Confiscation Act'—against certain real estate in Alexandria, Virginia, a State then within the government lines, belonging to one McVeigh, a person then in the rebel lines, to confiscate it.

This act authorized a seizure by the President, of the property in the then loyal States of any person giving aid and comfort to the rebellion, and directed that after the property had been seized, proceedings in rem should be instituted in any District Court of the United States, 'which proceedings,' said the act, 'shall conform as nearly as may be to proceedings in admiralty or revenue cases.' The act further directed that if, on such proceedings had, the property, whether real or personal, should be found to belong to a person giving aid and comfort to the rebellion, the same should be condemned 'as enemies' property,' and become

the property of the United States, and be disposed of as the court should direct.

This 'Confiscation Act' was the subject of interpretation by this court in several cases which arose in December Term, 1867,¹ and in which it was adjudged that where the proceedings under the act relate to a seizure of land, they present a case of common-law jurisdiction, and are to be conformed in respect to trial by jury to the course of the common law.

In the particular proceedings now before the court, that is to say, the proceedings against McVeigh's land, McVeigh appeared by attorney, interposed a claim to the property, and filed an answer. The District Attorney of the United States submitted a motion that the appearance, answer, and claim should be stricken from the records, for the reason that the respondent was a resident of a place specified, within the Confederate lines, and a rebel. The court (Underwood, J.) granted this motion. A decree pro confesso was subsequently entered, the life interest of McVeigh in the property condemned and ordered to be sold, and sold accordingly; one Gregory being the purchaser. McVeigh then brought the case on error to this court; it is reported in 11th Wallace, page 267. The court, by Swayne, J., then said:

'The District Court committed a serious error in ordering the claim and answer of the respondent to be stricken from the files. The order in effect denied the respondent a hearing. It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum. If assailed there he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and our civilization. We cannot besitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice.'

This court accordingly reversed the judgment, and remanded the case with directions to proceed 'in conformity to law.'- With this judgment and opinion in his hand, McVeigh now brought ejectment against Gregory, the purchaser, in the Corporation Court of Alexandria, which was the proper court to sue in, to recover the lands in which his life estate had been sold, under the decree in the proceedings under the Confiscation Act.

On the trial the defendant set up the purchase ade under the decree in the suit in confiscation, and requested the court to charge that the decree of condemnation divested McVeigh of his life estate. The court refused so to charge, and, contrariwise, charged that

'The sentence of condemnation was void, and the plaintiff was not divested of any part of his title in the premises by reason of the sentence, sale, and deed of the marshal, because the answer, claim, and appearance of McVeigh were struck from the files by the court before the decree was entered, and the said McVeigh was thus denied a hearing, and his property condemned without any opportunity of defence on his part.'

The defendant excepted to this charge.

Judgment was rendered, of course, in favor of McVeigh, the plaintiff.

The defendant then addressed a petition to the different judges of the Supreme Court of Appeals, of Virginia, praying for a writ of error and supersedeas to the said judgment. The petition was not to the court in its corporate capacity.

The provisions of statute in Virginia² on this subject of writ of error, &c., to the court just named are as follows:

When and in what case petition for appeal may be presented, time excluded from the computation.

'SECTION 2. Any person who thinks himself aggrieved by an order in a controversy concerning the . . . possession of title of property to be changed, or adjudicating the principles of a cause, or to any civil case wherein there is a final judgment, decree, or order, may present a petition . . . for a writ of error or supersedeas to the judgment or order.'- Record exhibited with petition; how it is made up; what shall not be copied.

'SECTION 5. With such petition there shall be a transcript of the record, of so much of the case wherein the judgment, decree, or order is, as will enable the court or judge to whom the petition is to be presented properly to decide on such petition, and to enable the court, if the petition be granted, properly to decide the questions that may arise before it.'

To whom presented.

'SECTION 9. The petition may be presented to the court wherein the case is to be docketed if the writ of error or supersedeas be allowed, or to a judge thereof, or, if the judgment, decree, or order be of a county court, to any circuit judge.'

When petition to be rejected, and when rejection final.

'SECTION 10. . . .. In a case wherein the court or judge to whom a petition is duly presented shall deem the judgment, decree, or order plainly right, and reject it on that ground, if the order of rejection so state, no other petition shall afterwards be presented to the same purpose.'

The judges of the Supreme Court of Appeals deeming the judgment complained of to be 'plainly right,' each and all rejected the petition and refused to grant any writ of error or supersedeas.

This was, therefore, the end to all further proceedings in appeal in the courts of the State.

The defendant now got a writ of error from this court to the Corporation Court of Alexandria, assuming the case to come within section 709 of the Revised Statutes (the 25th section of the old Judiciary Act), which enacts that——

'A final judgment or decree in any suit in the highest court of the State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, an authority exercised under the United States, and the decision is against its validity . . . may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error.'

The Corporation Court of Virginia is not the highest court of the State of Virginia. That court is the Supreme Court of Appeals.

Mr. P. Phillips, in support of the motion to dismiss for want of jurisdiction:

We place this motion on two grounds:

1st. That the Corporation Court, to which the writ of error was directed, was not the highest court of the State in which the decision on the case could be had.

2d. That the charge given by the judge—to wit, that the confiscation proceedings did not divest McVeigh of his title, on the ground that he had been refused a hearing and his answer stricken from the files—did not involve a 'Federal question;' in other words, that such proceedings did not show 'an authority exercised under the United States.'

1st. The court was not the highest court of the State in which a decision could be had.

The statute of Virginia enacts that when the court or judge to whom the petition is presented shall deem the judgment plainly right and reject it on that ground, if the order of rejection so state it, no other petition shall afterwards be presented. The defendant in the present case, having the right to present a petition for the writ of error to the Court of Appeals, or to the judge, has adopted the latter mode. His application was rejected not by the Court of Appeals, but by 'all the judges.'

The appellate jurisdiction of this court is exercised only by virtue of section 709 of the Revised Statutes (the old 25th section of the Judiciary Act), and that confines it to the revision of the judgment of the highest court of the State in which the decision could be had.

The question then is, was the Corporation Court the highest court in the State in which the decision could be had?

The appellant maintains the affirmative, because he says that he applied to all the judges of the highest court for the writ of error, and that they refused it.

If he had made his application to the court itself, and had had an order rejecting the application, that rejection would have constituted an affirmance of the judgment below. In other words, it would have been the decision of the highest court of the State that the judgment was plainly right. The writ of error would then, confessedly we suppose, have been only directed to review the judgment of the Court of Appeals. The statute of Virginia requires the petition to be accompanied by the transcript, an assignment of error, and notice to the opposite party. The cause is thus fully before the Court of Appeals, on the showing made by the petitioner, and the decision of the court is as final and complete, as it could have been if the cause had been docketed and regularly argued.

But this is not an open question.

In The Richmond Railroad Company v. The Louisa Railroad Company,³ where the ...