Leo Lung On v. United States

• Decision Date: 27 February 1908
• Docket Number: 2,466.
• Citation: 159 F. 125
• Parties: LEO LUNG ON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

159 F. 125

LEO LUNG ON v. UNITED STATES.

No. 2,466.

United States Court of Appeals, Eighth Circuit.

February 27, 1908

In Error to the District Court of the United States for the District of Nebraska.

Syllabus by the Court.

The judgment of a district court rendered on an appeal from order of a commissioner directing the deportation of a Chinese is not subject to review on a writ of error, but only on an appeal.

S. A Searle (Edson Rich and Charles E. Clapp, on the brief), for plaintiff in error.

Edwin W. Sims, U.S. Atty., and A. W. Lane, Asst. U.S. Atty (Charles A. Goss, U.S. Atty., on the brief), for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District judge.

VAN DEVANTER, Circuit Judge.

This writ of error challenges a judgment of the District Court affirming an order of a commissioner directing that the plaintiff in error be deported from the United States as a Chinese not entitled to remain therein; and counsel have assumed, in the discussion of the questions sought to be presented for decision, that the case is properly here upon a writ of error, and also that such a writ brings up for review both the law and the facts. The settled practice, however, is otherwise. A writ of error brings up questions of law, and nothing more, while an appeal when it is the proper mode of obtaining a review, usually brings up both the law and the facts. Rev. St. Sec. 1011 (U.S. Comp. St. 1901, p. 715); Hall v. Houghton & Upp Mercantile Co., 8 C.C.A. 661 60 F. 350; Mason City, etc., Co. v. Boynton (C.C.A.) 158 F. 599; In re Neagle, 135 U.S. 1, 42, 10 Sup.Ct 658, 34 L.Ed. 55; Elliott v. Toeppner, 187 U.S. 327, 334, 23 Sup.Ct. 133, 47 L.Ed. 200; Taylor on Jurisdiction and Procedure of U.S. Supreme Court, Secs. 119, 120. And an appeal is the proper mode of obtaining a review in cases like this. Such was the holding of the Circuit Court of Appeals of the Sixth Circuit in United States v. Hung Chang, 67 C.C.A. 93, 134 F. 19, and it has the sanction of a long-continued practice. United States v. Mrs. Gue Lim, 176 U.S. 459, 20 Sup.Ct. 415, 44 L.Ed. 544; Chin Bak Kan v. United States, 186 U.S. 193, 22 Sup.Ct. 891, 46 L.Ed. 1121; Ah How v. United States, 193 U.S. 65, 24 Sup.Ct. 357, 48 L.Ed. 619; Tom Hong v. United States, 193 U.S. 517, 24 Sup.Ct. 517, 48 L.Ed. 772; The United States, Petitioner, 194 U.S. 194, 24 Sup.Ct. 629, 48 L.Ed. 931; Ark Foo v. United States, 63 C.C.A. 249, 128 F. 697; Toy Tong v. United States, 76 C.C.A. 621, 146 F. 343; Moy Suey v. United States, 78 C.C.A. 85, 147 F. 697; Lee Joe Yen v. United States, 78 C.C.A. 427, 148 F. 682; Jung Yuen v. United States, 79 C.C.A. 534, 149 F. 1023. Moreover, the...