Summary
In Harrington v. Hollow, 111 U.S. 796, it is held that a dismissal of a writ of error was the refusal to hear and decide the cause, and that in such a case mandamus was the remedy to compel the court to hear and proceed to its determination.
Summary of this case from Schintz v. MorrisOpinion
Submitted April 21st, 1884. Decided May 5th, 1884.
Practice. A decision of the Supreme Court of a Territory dismissing a writ of error to a District Court because of failure to docket the cause in time is not a final judgment or decision within the meaning of the statutes regulating writs of error and appeals to this court. Mandamus is the proper remedy in such case.
Mr. John H. Mitchell for defendant in error moving.
Mr. S.S. Burdett for plaintiff in error opposing.
This came up on motion to dismiss the writ of error.
This motion is granted on the authority of Insurance Company v. Comstock, 16 Wall. 258, and Railroad Company v. Wiswall, 23 Wall. 507. An order of the Supreme Court of Washington Territory dismissing a writ of error to a District Court, because of the failure of the plaintiff in error to file the transcript and have the cause docketed within the time required by law, is not a final judgment or a final decision within the meaning of those terms as used in sections 702 and 1911 of the Revised Statutes regulating writs of error and appeals to this court from the Supreme Court of the Territory. Section 702 provides for the review of final judgments and decrees by writ of error or appeal, and section 1911 regulates the mode and manner of taking the writ or procuring the allowance of the appeal. The use of the term "final decisions" in section 1911 does not enlarge the scope of the jurisdiction of this court. It is only a substitute for the words "final judgments and decrees" in section 702, and means the same thing.
The dismissal of the writ was a refusal to hear and decide the cause. The remedy in such a case, if any, is by mandamus to compel the court to entertain the case and proceed to its determination, not by writ of error to review what has been done. Ex parte Bradstreet, 7 Pet. 647; Ex parte Newman, 14 Wall. 165.
Dismissed.