Opinion
07-16-1872
COWAN v. DODDRIDGE.
Gilmore, for the motion. Ronald, against it.
He had been counsel.
1. When, in pursuance of the act of 1869-'70, ch. 171, §5, p. 227, this court sent a cause which had been pending in a District court of Appeals, to a Circuit court, that was a decision of this court, that the act was constitutional, and that the Circuit court had jurisdiction to rehear and decide the same.
2. If in such a case the judge of the Circuit court refuses to rehear and decide the same, and directs it to be struck from the docket, no appeal can be taken from his judgment. The remedy is by application to this court for a mandamus to the circuit judge, to compel him to rehear and decide the case.
3. In such case this court will make an order for a writ of mandamus nisi to the judge, and direct that the service of a copy of the order shall be equivalent to the service of the writ.
At the August term, 1869, of the County court of Pulaski, C. E. Doddridge recovered a judgment in an action of covenant against John T. Cowan for four hundred and ninety dollars, with interest from the date of the judgment. Cowan thereupon applied to the judge of the Circuit court of Pulaski for a supersedeas; which was awarded; but when the case came on to be heard the judgment was affirmed. Cowan then carried the case by supersedeas to the District court of Appeals; and it was pending in that court when the present constitution was adopted, and the District courts of Appeal were abolished. In pursuance of the act of June 23, 1870, in relation to the Court of Appeals, Sess. Acts of 1869-'70, ch. 182, §29, clause 2, p. 227, the case was sent to the Supreme court of Appeals at Richmond; and that court holding that it did not have jurisdiction of the case, in pursuance of the same act, §29, clause 5, directed it to be sent to the Circuit court of Pulaski; and it was received by the clerk of that court, and put upon the docket.
In the Circuit court of Pulaski the appellee objected to the jurisdiction of the court to hear and decide the case as upon appeal, on the ground that the act of Assembly which authorized it was unconstitutional; and the case coming on to be heard on the 20th of September 1861, the judge--Fulton--being of this opinion, it was ordered that the cause be dismissed and stricken from the docket. Cowan thereupon applied to a judge of this court for a supersedeas from this order; which was awarded. And then Doddridge moved the court to dismiss the appeal as improvidently awarded.
Gilmore, for the motion.
Ronald, against it.
MONCURE, P. delivered the judgment of the court.
This day came the parties by their counsel, and the court, having maturely considered the motion of the defendant in error to dismiss the writ of error and supersedeas awarded in this case to a judgment rendered by the Circuit court of Pulaski county in this cause, on the 20th day of September 1871, upon the ground that the said writ was improvidently awarded, is of opinion--without now deciding whether in any case an appeal will lie from the judgment of a Circuit court sitting as an appellate court under section 5 of chapter 171 of the Acts of Assembly, 1869-'70, page 227--that, whether the said Circuit court intended by the said judgment to decide the question of the constitutionality of the said section of the said act or not, an appeal does not lie from the said judgment; because, if the said court did not intend so to decide, then the matter in controversy, exclusive of costs, was less in value or amount than $500 on the 23d day of September 1869, when the judgment was rendered by the said Circuit court affirming the judgment of the County court of said county in this cause; and if the said Circuit court did intend so to decide, and therefore declared that it had " not jurisdiction to review, reverse or affirm" the said judgment of the 23d day of September 1869, then the said Circuit court intended to decide a question which had already been decided by this court, in pursuance of the said section of the said act--this court having, on the 6th day of March 1871, ordered the said cause to " be transferred and docketed in the said Circuit court of Pulaski county, whence the appeal was originally taken, there to be heard and finally disposed of, as by an appellate court, according to law." Therefore it is considered and ordered that the said motion be sustained, and the said writ of error and supersedeas be dismissed, as having been improvidently awarded, and that the plaintiff pay to the defendant in error his costs by him about his said motion expended.
And on the motion of the plaintiff in error, it is ordered that a writ of mandamus nisi be issued, commanding the Hon. John H. Fulton, judge of the said Circuit court of Pulaski county, to proceed to hear and finally dispose of, as by an appellate court, in pursuance of section 5 of chapter 171 of the Acts of 1869-'70 aforesaid, and in pursuance of the said order of this court of the 6th day of March 1871, the said cause which was thereby ordered to be transferred and docketed in the said Circuit court as aforesaid; unless he shall, on or before the 10th day of the next term of this court, appear here and show good cause to the contrary. And it is further ordered, that a copy of this order be duly served upon him, and returned to this court, or the clerk thereof, on or before that day, with evidence of such service thereon endorsed; and that such service shall have the same force and effect as the execution upon him of a writ of mandamus nisi, issued in pursuance hereof.
APPEAL DISMISSED, AND RULE FOR PROHIBITION AWARDED.