Bates v. Payson

2 F. Cas. 1025, 4 Dill. 265

• Court: U.S. Circuit Court for the District of Colorado
• Decided: July 1, 1877
• Status: Published

Opinion

MIDLER, Circuit Justice,

presiding, overruled the objection. It was.admitted that the case was one which might have been brought in a federal court, if such courts had existed at the date of the commencement of the suit. As such, the case was within the eighth section of the act. By that section this court is declared to be the successor of the supreme court of the territory as to all such cases, with power to proceed therein “in due course of law.” This means that this court may do all that was left undone in the supreme court of the territory. The cause was pending in that court for review, and we may proceed as that court would have proceeded if it had retained the case. The way in which, under the territorial statutes, the cause was taken to the supreme court of the territory, is not material to be considered. The act of congress applies to all cases of federal character pending in that court at the date of the admission of the state, and it matters not whether they were removed into that court by writ of error or appeal.

If it were necessary to remand the cause to the state court there would be a difficulty in disposing of it, but that was not required. Whether the judgment should be affirmed or reversed, we could enter the proper judgment here, and, if necessary, we could try the case again in this court.

Afterwards, and at this same term, argument was heard on the errors assigned, and the court finding no error in the record, the judgment was affirmed, and it was ordered that the said judgment be entered of record in this court.

Judgment accordingly.