United States v. Rosenburgh

Decision Date01 December 1868
CourtU.S. Supreme Court

ON certificate of division in opinion between the judges of the Circuit Court for the Southern District of New York.

The Judiciary Act of 1802 provides that whenever any question shall occur before a Circuit Court, upon which the opinion of the judges shall be opposed, the point upon which the disagreement shall happen, may be certified to this court, and shall by it be finally decided.

With this statute in force, one Rosenburgh was indicted in the court below, for an offence alleged to be within an act of Congress specified. A motion being made to quash the indictment, on the ground, among others, that upon the true interpretation of the act under which the indictment was made, no offence had been committed, and that the indictment was insufficient, a division of opinion on these points existed between the judges, involving, of course, a division as to whether the motion to quash ought or ought not to be granted.

The division upon the meaning of the act, and upon the sufficiency of the indictment, being certified, these points were argued. But it appearing, also, that they arose upon a motion to quash, a preliminary question—one, as the result proved, which rendered the decision of the other questions unnecessary—was suggested here; the question, namely, whether this court could, under the above-quoted Judiciary Act of 1802, take cognizance of a certificate of division upon a motion to quash an indictment.

Mr. Evarts, Attorney-General, for the United States.

Mr. E. W. Stoughton, contra.

The CHIEF JUSTICE delivered the opinion of the court.

The general rule undoubtedly is, that this court cannot, upon a certificate of division of opinion, acquire jurisdiction of questions relating to matters of pure discretion in the Circuit Court. Thus, it has been held that this court will not determine upon a certificate of division of opinion, whether or not a new trial shall be granted,1 or whether a plaintiff in ejectment shall be permitted to enlarge the term in the demise,2 or any question in any equity cause relating to the practice in the Circuit Court, and depending on the exercise of sound discretion in the application of the rules which regulate the course of equity to the circumstances of the particular cause.3

The principles by which the limit of jurisdiction, upon certificates of division, is determined, were quite fully considered in the case of Davis v. Braden,4 and the conclusion of the court was, that a division on a motion, to be granted or refused at the discretion of the court, does not present a point which can be certified under the act of Congress. Upon this principle, the court in that case refused to take cognizance, upon certificate, of the question, whether an action of detinue, founded upon tort, when abated by the death of the defendant, can be revived against his personal representatives.

In the opinion then delivered, the court took notice of the case of The United States v. Wilson,5 supposed to be an authority for taking cognizance of the question made by the motion to revive. In that case the question certified was, whether a prisoner, convicted of a capital crime, could have any advantage from a pardon without bringing it judicially before the court; and it arose upon a motion of the district attorney for sentence. The court regarded this as a question going to the merits, and not determinable in the exercise of mere discretion; and, therefore, held this case not to be an authority for another, in which the merits were not involved in the question certified.

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33 cases
  • Jones v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 16 Julio 1964
    ...cert. denied, 347 U.S. 1018, 74 S.Ct. 874, 98 L.Ed. 1140 (1954). 34 329 F.2d 848, 853 (1964). 35 See, e.g., United States v. Rosenburgh, 74 U.S. (7 Wall.) 580, 19 L.Ed. 263 (1868); Nanfito v. United States, 20 F. 2d 376 (8th Cir. 1927); Stewart v. United States, 300 F. 769 (8th Cir. 36 Supr......
  • Stewart v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 12 Junio 1924
  • U.S. v. Kennedy
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 28 Noviembre 1977
    ...jury has acted, and how far, in case of such an inquiry, the discretion of the trial court is subject to review (United States v. Rosenburgh, 7 Wall. 580, 19 L.Ed. 263) it is enough to say that there is no reason for reviewing it here. All that the affidavit disclosed was that evidence in i......
  • United States v. Broude
    • United States
    • U.S. District Court — District of Minnesota
    • 6 Febrero 1924
    ......A motion to. quash an information or an indictment, in addition to being. interlocutory, is addressed to the sound discretion of the. court, and for that reason an order denying the same cannot. be assigned as error. In United States v. Rosenburgh, 7. Wall. 580, 583, 19 L.Ed. 263, it is said:. . . . 'The. motion to quash, upon which the question now before us. arose, was clearly determinable as a matter of discretion. It was preliminary in its character, and the denial of the. motion could not * * * decide any right of the ......
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