Cerecedo v. Calderón

7 P.R. Fed. 96

Opinion

HamiltoN, Judge,

delivered tbe following opinion:

Since tbe argument upon tbe application for writ of error, counsel bave called tbe attention of tbe court to tbe case of Munich v. Valdes, 4 Porto Pico Fed. Pep. 98. In tbat case Judge Podey bolds tbat this “court bas no power, except possibly in very exceptional cases, to deny tbe right to a writ of error against its judgments. Tbe good faith of tbe suing out of such a writ is a matter for tbe Supreme Court to settle.” This opinion is reaffirmed as stare decisis by tbe same judge in Zurrinach v. Aran, 5 Porto Rico Fed. Rep. 33. Based upon this, tbe counsel seeking a writ of error asks tbe court to change its ruling and allow a writ of error.

1. Judge Podey concluded tbat be was admonished by tbe granting of a writ in an earlier case, tbat be probably bad no power to prevent tbe suing out of .the writ of error by Valdes. Tbe second case merely followed tbe first without any further consideration of tbe question. Tbe Valdés Case related to a conflict of a treaty and an act of Congress, and tbe Zurrinacb Case to tbe question bow far an act of Congress as to politics of jury commissioners applied to Porto Pico. Tbe granting of a writ in these two cases was doubtless correct.

Tbe case at bar is not, however, one raising any Federal question. Tbe ground of decision is clear in tbe mind of the court. Tbe two eases cited do not go so far as this. This, however, does not deprive tbe petitioner of all remedy. He can still apply to a justice of tbe Supreme Court, and if tbe point involved seems more doubtful to tbe justice than it does to tbe judge, tbe writ would be allowed.

2. It is true that tbe time remaining to obtain tbe writ is very short. This, however, is not in any way tbe fault of tbe court. In case a justice of tbe Supreme Court should grant tbe writ, and information of this comes officially to this court, even by cable, tbe court will be glad to co-operate in making tbe fiat effective. It will in such case grant tbe writ pro forma, so as to save any question of time.

3. Any other procedure would reduce tbe application for a writ of error to a mere form, and compel tbe granting of tbe application in every case. It would become practically a ministerial, instead of a judicial, act, and this construction does not seem to be proper.

Reapplieation denied.