UNITED STATES
v.
EMHOLT

U.S. | 1881-10-01
105 U.S. 414 Supreme Court of the United States (1881) Positive Treatment
Also reported at: 26 L. Ed. 1077 · 1881 U.S. LEXIS 2140 · SCDB 1881-176
Cited by 19 cases

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Synopsis

In United States v. Emholt, the Supreme Court addressed its jurisdiction over a case brought by certificate of division of opinion from the Circuit Court. The Court held that it lacked jurisdiction because a district judge who was disqualified from voting on the Circuit Court judgment could not properly certify a division of opinion with a qualified judge, and the consent of parties could not enlarge the district judge's authority or change the proper procedure for Supreme Court review. The Court dismissed the appeal and remanded the case to the Circuit Court.

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Opinion of the Court
Mr. Justice Gray,

Mr. Justice Gray,

after stating the case, delivered the opinion of the court.

This court has no jurisdiction of the question certified. The office -and object of a certificate, of. division of opinion are to bring to this court for determination a qnestion of law upon which the opinions of two judges, competent to take part in. the judgment of the Circuit Court, are opposed to each, other. By the provisions óf sbct. 4 of the act of Sept. 24, 1789, c. 20, and of sect. 5 of‘the act of April 29, 1802, c. 31, re-enacted in the Revised Statutes, sect. 614, upon the hearing in the Circuit Court of an appeal from a judgment of the District Court, the district judge who rendered the decision appealed from, although he may, for the information of the Circuit Court, assign his reasons for that decision, is prohibited from voting or taking part in the judgment of the Circuit Court, and that judgment is to be entered according to the opinion of the judge who is not so disqualified. The provision of-sect. 2 of the act of March 2, 1867, c. 185, also incorporated in the same section .of the Revised Statutes, which, in order to prevent failure, or delay of justice, permits such á case, by consent of parties, to be heard and disposed of by the district judge when alone holding the Circuit Court, has no application when another judge is present. And the provisions of sect. 6 of the act of April 29, 1802, c. 31, and of sect. 1 of the act of June 1, 1.872, c. 255, embodied in sects. 650, 652, 693, 697, of the Revised Statutes, do not enlarge the authority of the district judge in this respect. It necessarily follows that the case cannot be brought to this court-upon a certificate of division of opinion between the judge, who is'qualified and the judge who is disqualified to take part in the judgment. United States v. Lancaster, 5 Wheat. 434; Nelson v. Carland, 1 How. 265.

The case cannot* be treated as before this court on the appeal from.the Circuit - Court,, without regard to the certificate of division, because it is on the common-law side of .that court. If it is to be considered as a civil action, the proper mode of bringing it up is by writ of error, and not by appeal. Bevins v. Ramsey, 11 How. 185; Jones v. La Vallette, 5 Wall. 579. If, according to Clifton v. United States (4 How. 242, 250), it should be treated as in the nature of a criminal proceeding, it is hard to see how it could be brought to this court at all, except upon a certificate of division of opinion. Ex parte Gordon, 1 Black, 508.

Neither the consent of parties nor the allowance of the appeal in the court appealed from can enable this court to review the judgment of that court in any other form of proceeding than the daw prescribes. Kelsey v. Forsyth, 21 How. 85; Callan v. May, 2 Black, 541.

This court having no jurisdiction of the case, the appeal must be dismissed, and the case

Remanded to the Circuit Court.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Glidden Co. v. Zdanok, 370 U.S. 530 (U.S. 1962)
    …The rule does not obtain, of course, when the alleged defect of authority operates also as a limitation on this Court’s appellate jurisdiction. Ayrshire Collieries Corp. v. United States, 331 U. S. 132 (three-judge court); United States v. Emholt, 105 U. S. 414 (certificate of divided opinion). In other circumstances as well, when the statute claimed to restrict authority is not merely technical [*536] but embodies a strong policy concerning the proper administration of judicial business, this Court has tr…
  • Stratton v. ST. Louis Sw. Ry. Co., 282 U.S. 10 (U.S. 1930)
    …o jurisdiction to hear the motion to dismiss the bill on the merits, the consent of the parties could not give validity to the decree or confer jurisdiction upon the Circuit Court of Appeals to entertain an appeal therefrom. United States v. Emholt, 105 U. S. 414, 416; Parker v. Ormsby, 141 U. S. 81, 86; Perez v. Fernandez, 202 U. S. 80, 100; 443 Cans of Egg Product v. United States, 226 U. S. 172, 184; Exporters v. Butterworth-Judson Company, 258 U. S. 365, 369. The remedy by mandamus to,,vacate the decree…
  • Am. Constr. Co. v. Jacksonville, 148 U.S. 372 (U.S. 1893)
    …which he took part was unlawful, and perhaps absolutely void, and should certainly be set aside or quashed by any court having authority to review it by appeal, error-or certiorari. United States v. Lancaster, 5 Wheat. 434; United States v. Emholt, 105 U. S. 414; The Queen v. Justices of Hertfordshire, 6 Q. B. 753 ; Oakley v. Aspinwall, 3 N. Y. 547; Tolland v. County Commissioners, 13 Gray, 12. The writ of certiorari, authorized by the act of 1891, and prayed for in this case, being in the nature of a writ…

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