In re Haight & Freese Co.
| Decision Date | 18 March 1908 |
| Docket Number | 673 (Original). |
| Citation | 164 F. 688 |
| Parties | In re HAIGHT & FREESE CO. |
| Court | U.S. Court of Appeals — First Circuit |
Franklin Bien, I. R. Clark, and G. F. Ordway, for petitioner.
Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.
These proceedings were commenced on September 9, 1906, on a petition filed by the Haight & Freese Company for a writ of mandamus to go to the Circuit Court of the United States, and to a judge thereof, directing the judge to allow an appeal which he had refused to allow. His refusal is known to have been based on the theory that there was no final decree; and this was not free from doubt. It is apparent, therefore, that the learned judge in declining to allow the appeal acted judicially in the exercise of judicial discretion.
On filing the petition for the writ of mandamus, a summons to show cause why the petition should not be granted was issued to the adverse parties in the Circuit Court, but none at the outset to the judge thereof. Subsequently, on October 9 1906, the adverse parties came into this court, and filed a motion to dismiss the petition for mandamus, alleging that the learned judge of the Circuit Court had reconsidered the question of allowing the appeal, and was then willing to allow it; that the Haight & Freese Company declined to accept such allowance, and insisted on pressing its petition; that the Haight & Freese Company might at any time, without the order of this court, obtain all the relief sought by the petition; and that the further maintenance of the petition would be merely a source of vexation and delay. It will be perceived that the adverse parties who thus appeared did not resist the relief asked for by the petition for mandamus, but put their motion to dismiss merely on the ground that mandamus was unnecessary, because the proceeding had become in effect a moot case. Subsequently, on October 30, 1906 this court of its own motion ordered a summons to show cause to issue to the learned judge of the Circuit Court. On November 9th the answer of the learned judge was filed, in which he returned that he had vacated the order disallowing the appeal, and had allowed it. Thereupon the petition for mandamus was dismissed by this court, and all questions of costs were reserved.
On the subsequent application of the Haight & Freese Company, the question of costs was referred to the clerk of this court who reported adversely thereto, whereupon this application to us to review his report was presented.
If an alternative writ of mandamus had issued, there would have been pending a suit at common law, and one party or the other might have appeared as a prevailing party entitled to costs as contemplated by section 983 of the Revised Statutes (U.S Comp. St. 1901, p. 706). Phillips' Practice (5th Ed 1887) 418. There is, however, no statute nor any rule of the Supreme Court which,...
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