Edinburg Coal Co. v. Humphreys

Seventh Circuit

Edinburg Coal Co. v. Humphreys

134 F. 839, 67 C.C.A. 435, 1905 U.S. App. LEXIS 4285

CourtCourt of Appeals for the Seventh Circuit

DecidedJanuary 3, 1905

DocketNo. 1,129

StatusPublished

This text of 134 F. 839 (Edinburg Coal Co. v. Humphreys) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Edinburg Coal Co. v. Humphreys, 134 F. 839, 67 C.C.A. 435, 1905 U.S. App. LEXIS 4285 (7th Cir. 1905).

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Opinion

GROSSCUP, Circuit Judge

(after stating the facts). Were the proceedings in the District Court coram non judice, the relator’s petition would fail because of want of application to the District Court before [840]*840the presentation of the petition here. Were this the correct view of. the relation of the District Court to the relator, the petition for mandamus would be analogous to a writ of replevin, or a suit in detention, looking to the delivery of the property. In no such suit is a writ ever issued until demand has been made upon the party withholding the property. Under no view of this case, then, can this petition, on its present averments, be sustained.

But we do not think that the receivership proceedings in the District Court were coram non judice. Whether the relator was a company engaged principally in mercantile business or not — and whether, pending such determination, a receiver should have been appointed, with authority to borrow money — were judicial questions properly within the jurisdiction of the District Court, in the first instance, to determine. So also, what effect the order of dismissal should be held to have upon the receivership proceedings pending such order, is itself a judicial question to be determined according to legal principle, and primarily, by the District Court. Blake v. McClung, 172 U. S. 239, 19 Sup. Ct.. 165, 43 L. Ed. 432; In re Blake et al., 175 U. S. 114, 20 Sup. Ct. 42, 44 L. Ed. 94. Questions of this character cannot be revised in this court .by a writ of mandamus. They must come up through the regular channels of appeal and error.

The demurrer of the respondent is sustained, and the petition of the relator is dismissed.

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GROSSCUP, Circuit Judge

(after stating the facts). Were the proceedings in the District Court coram non judice, the relator’s petition would fail because of want of application to the District Court before [840]*840the presentation of the petition here. Were this the correct view of. the relation of the District Court to the relator, the petition for mandamus would be analogous to a writ of replevin, or a suit in detention, looking to the delivery of the property. In no such suit is a writ ever issued until demand has been made upon the party withholding the property. Under no view of this case, then, can this petition, on its present averments, be sustained.

But we do not think that the receivership proceedings in the District Court were coram non judice. Whether the relator was a company engaged principally in mercantile business or not — and whether, pending such determination, a receiver should have been appointed, with authority to borrow money — were judicial questions properly within the jurisdiction of the District Court, in the first instance, to determine. So also, what effect the order of dismissal should be held to have upon the receivership proceedings pending such order, is itself a judicial question to be determined according to legal principle, and primarily, by the District Court. Blake v. McClung, 172 U. S. 239, 19 Sup. Ct.. 165, 43 L. Ed. 432; In re Blake et al., 175 U. S. 114, 20 Sup. Ct. 42, 44 L. Ed. 94. Questions of this character cannot be revised in this court .by a writ of mandamus. They must come up through the regular channels of appeal and error.

The demurrer of the respondent is sustained, and the petition of the relator is dismissed.

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Bluebook (online)

134 F. 839, 67 C.C.A. 435, 1905 U.S. App. LEXIS 4285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edinburg-coal-co-v-humphreys-ca7-1905.

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