In re Alexander McKenzie, Petitioner . No. ___, Original

• Decision Date: 25 March 1901
• Parties: In re ALEXANDER McKENZIE, Petitioner . No. ___, Original
• Court: U.S. Supreme Court

180 U.S. 536

21 S.Ct. 468

45 L.Ed. 657

In re ALEXANDER McKENZIE, Petitioner.

No. ___, Original.

Submitted February 26, 1901.

Decided March 25, 1901.

This is an application by Alexander McKenzie for leave to file a petition for habeas corpus to relieve him from an alleged unlawful restraint under certain orders of the circuit court of appeals for the ninth circuit committing him for contempt.

The petition stated that on July 23, 1900, McKenzie was, by the judge of the second division of the district court of Alaska, appointed receiver of the property involved in an action then pending in said court, entitled L. F. Melsing et al. v. John I. Tornanses, and was directed by the order appointing him as receiver to take possession of and operate a certain placer mining claim situated on Anvil creek near Nome, in the district of Alaska; a copy of the order was attached. That he duly qualified as such receiver and took possession of and operated said mine and was engaged in operating the same continuously from the time of his appointment down to and including the 14th day of September, 1900. That on the 29th of August, 1900, an appeal from said order, so appointing him receiver, was allowed by the Hon. W. W. Morrow, judge of the circuit court of the United States for the northern district of California; that a citation on said appeal was on that day signed by the said circuit judge, and a supersedeas bond approved. That none of these papers were filed with the clerk of the district court of Alaska, 2d division, until the 14th day of September, 1900. That on the same 29th day of August, 1900, the clerk of the United States circuit court of appeals for the ninth circuit issued a writ of supersedeas, a copy of which was attached and made a part of the petition.

'That thereafter and on the 14th day of September, 1900, a copy of such writ of supersedeas was served on your petitioner at Nome, Alaska; that your petitioner immediately ceased operations on said properties so taken possession of by him as such receiver under and in obedience to the order of the district court of Alaska, 2d division, but that your petitioner then and there refused to deliver to the defendants in said action the gold and gold dust then in his possession as receiver, and which had come to his possession from operating said properties.

'That thereafter, on the 1st day of October, 1900, the United States circuit court of appeals for the ninth circuit made and entered an order directing the United States marshal of the northern district of California to attach the person of the said Alexander McKenzie, and produce him before the United States circuit court of appeals for the ninth circuit, at the city and county of San Francisco, state of California, to answer to his refusal to obey the said writ of supersedeas hereinbefore referred to; that this matter came on regularly to be heard, and on the 11th day of February, 1901, the said United States circuit court of appeals, ninth circuit, ordered and adjudged your petitioner guilty of contempt of said court, and adjudged that he be imprisoned in the county jail of Alameda county, California, for the period of six months, and that by virtue of said judgment and in obedience to it he is now confined in the county jail of Alameda county, California, by Oscar L. Rogers, sheriff of Alameda county, California.

'Your petitioner further states and alleges, as he is advised, that the said United States circuit court of appeals for the ninth circuit had no jurisdiction or lawful authority to cause the arrest of your petitioner, or to proceed against him in the manner and form aforesaid, and that the said pretended process, arrest, order, trial, and judgment and warrant whereby your petitioner was committed to the custody of the said Oscar L. Rogers, sheriff, as aforesaid, and whereby he is held in the custody of the said Oscar L. Rogers, sheriff, as aforesaid, and imprisoned and restrained of his liberty, were and are, each and all of them, wholly without authority of law, in violation of law and of the just rights of your petitioner.

'That on the 29th day of August, 1900, the said circuit court of appeals for the ninth circuit was without authority of law to issue said writ of supersedeas, so called, or order the said writ to issue, for that it did not then have jurisdiction of the action entitled L. F. Melsing et al. v. John I. Tornanses, as at that time no appeal had been taken to the said court in the said case of L. F. Melsing v. John I. Tornanses, or from any order made or entered in said cause by the district court of Alaska, 2d division, because:

'(a) On said 29th day of August, 1900, no appeal had been taken in said cause from the district court of Alaska, 2d division, to the circuit court of appeals for the ninth circuit, for on said date neither the order allowing the appeal nor the assignment of errors, nor the undertaking on appeal, nor citation, had been filed with the clerk of the district court for the district of Alaska, 2d division, and no appeal had been allowed by said court or the judge thereof.

'(b) That on the 1st day of October, 1900, when the warrant for the arrest of your petitioner was issued, the circuit court of appeals for the ninth circuit was entirely without jurisdiction in the above-entitled cause, for on said date neither the order allowing the appeal nor any assignment of errors or undertaking on appeal had been filed with the clerk of the district court of Alaska, 2d division; and, further, that on said date the above-entitled cause had not been docketed in the circuit court of appeals for the ninth circuit, nor the record in said cause filed therein, and the return day of the appeal, as designated in the order allowing the appeal herein, and citation signed by the Honorable W. W. Morrow, the judge allowing said appeal, had passed, and there had been no extension of the time to file such record.

'That the said circuit court of appeals for the ninth circuit has been at all times without jurisdiction in the action of L. F. Melsing et al. v. John I. Tornanses, or of any order made therein, for that no appeal to said honorable court from the district court of Alaska had ever been taken in the above-entitled action or from any order made therein by said district court of Alaska, and that neither the order allowing an appeal signed by the Honorable W. W. Morrow on the 29th day of August, 1900, or any assignment of errors in said matter, nor any undertaking upon appeal has at any time been lodged or filed with the clerk of the said district court of the district of Alaska.

'That the paper entitled a writ of supersedeas annexed hereto was issued by the clerk of the circuit court of appeals, ninth circuit, on the order of the Honorable W. W. Morrow, circuit judge for the ninth circuit, and as such judge and not otherwise; that the said Honorable W. W. Morrow, circuit judge as aforesaid, was without authority of law to order the issuance of said writ, for that the same should only be issued, if at all, by the United States circuit court of appeals for the ninth circuit, acting as a court, and power to issue the same was not vested in the individual judges thereof; therefore said order of said Honorable W. W. Morrow, circuit judge as aforesaid and the said writ issued in obedience to his order, was and is void.

'Defendant alleges that on the dates when it is alleged in the affidavits on which the warrant for the arrest of this defendant was issued this defendant failed to obey said writ of supersedeas said writ of supersedeas was inoperative and void, for that no appeal had been taken to said court in the action entitled L. F. Melsing et al. v. John I. Tornanses.

'That the United States circuit court of appeals for the ninth circuit and the judges thereof were without authority to issue or direct the issuance of the writ of supersedeas individually in this case, inasmuch as said writ went beyond the proper scope of such writ and nullified the order of the lower court instead of directing a mere stay of proceedings.

'A judge of the circuit court of appeals for the ninth circuit had no power to grant the supersedeas staying the proceedings in the court below herein, for the reason that such power was vested exclusively in the district court of Alaska; that the said court of appeals for the ninth district was and is without jurisdiction in the premises, because:

'(a) There is no provision of law authorizing an appeal from an interlocutory order from the district court of Alaska appointing a receiver, or from an order refusing to discharge a receiver, and said appeal was not taken or attempted to be taken within the time limited by law.

'(b) Because the order in question made by the district court of Alaska is an interlocutory order appointing a receiver, and not an interlocutory order granting an injunction or refusing to dissolve an injunction.

'That the United States circuit court of appeals for the ninth circuit did not authorize or direct the issuance of the paper entitled a writ of supersedeas, which it is claimed this defendant disobeyed, and which was issued by the clerk of the circuit court of appeals, ninth circuit, on the 29th day of August, 1900, and that the same was issued by said clerk without authority of law, and was and is void.

'Your petitioner hereto attaches a copy of the record on appeal in said cause, and a copy of the record in the matter of his alleged contempt and a copy of the testimony submitted in the trial of said alleged contempt, marked Exhibits A, B, C, and D.'

Petitioner prayed for the writs of habeas corpus and certiorari and for his discharge.

Copy of Order Appointing Receiver.

Now, on this 23d day of July, A. D. 1900, come the complainants, L. F. Melsing, H. L. Blake, D. B. Libby, W. T. Hume, and O. P. Hubbard, above set forth, and upon the complaint filed in said action on behalf of the complainants comes on for hearing the...