Carico v. Wilmore

51 F. 200, 1892 U.S. Dist. LEXIS 80

Opinion

Paul, District Judge.

No appeal having been taken to this order by-respondent at the time it was entered, he now asks leave at this, the first term of the district court since the special term at which said order was entered, to amend the same, and grant him an appeal to the supreme court of the United States. Petitioner objects to said order being amended as prayed for, on the ground that an appeal lies only from a final decision, and that the order of January 12, 1892, taking petitioner from the custody of respondent, and holding him to answer the indictment to the United States court, is not such a final order as would give respondent .the right to appeal; and on' the further ground that respondent has no right of appeal, even if the said order be regarded as final. The court does not concur in these objections. It thinks the order releasing petitioner from the custody of respondent, and placing him in the custody of the marshal, and holding hini to answer in the circuit court of the United States the indictment found against him in the county court of Smyth, is as final, as far as the respondent is concerned, as if the order had been for the absolute discharge of the petitioner from the custody of respondent. In the argument counsel for the petitioner claimed that no case can be found in the reported decisions of the United States court where such an appeal has been allowed to respondent. This position is incorrect. Such an appeal was allowed to the sheriff of San Joaquin county, Cal., in the case known as the Neagle Case, 135 U. S. 1, 10 Sup. Ct. Rep. 658. Such an appeal was also allowed in the case of Brimmer v. Ritman, 138 U. S. 78, 11 Sup. Ct. Rep. 213; and no doubt other decisions might be found to the same effect.

! Nor is the position taken by counsel for the petitioner correct that the (writ of habeas corpus was merely ancillary to the petition for the removal of the case of The Commonwealth of Virginia v. Joseph H. Carico from the county court of Smyth county, Va., to the circuit court of the United States. It was a distinct and different proceeding, held in a different 'court, and under a different statute. It was not taken under the pro- ¡ visions of section 643 of the Revised Statutes of the United States, as counsel for petitioner claims, in which case the writ would have been issued by the clerk of the circuit court as provided in said section. The ¡writ was allowed by the district judge on the 18th day of December,

■ 1891, whereas the petition for removal, as shown by record evidence, .used in the discussion of this motion, was not filed in the clerk’s office of the circuit court until the 19th day of December, 1891. The court is of the opinion that the respondent in this case has the right to appeal to the supreme court of the United States, and the order will be amended • accordingly.