In re Paquet

114 F. 437, 52 C.C.A. 239, 1902 U.S. App. LEXIS 4107

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 15, 1902
• Docket: No. 1,116
• Status: Published

Opinion

PARDEE, Circuit Judge.

This court is an appellate court, and depends entirely for its powers upon the statute of March 3, 1891 (26 Stat. 826), and statutes amendatory thereof. Its power to- issue writs is derived from section 12 of that act, which gives the court the power specified in section 716, Rev. St. U. S., to issue writs of scire facias, and “all writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdiction and agreeable to the usages and principles of law.” Further than this, the appellate jurisdiction appears to be limited by the act creating the court to two methods of review, — by appeal and writ of error. Section 6 provides that the courts of appeal established by this act “shall exercise appellate jurisdiction to review by appeal or writ of error final decisions,” etc., and no other method of review is provided. In issuing writs not specially provided for by statute, it appears by the letter of the law that such writs are to be issued when necessary for our jurisdiction, and it would seem that, by the intent of the law, only when .necessary to such jurisdiction; and this is supported by Ex parte Gordon, 1 Black, 503, 17 L. Ed. 134; Ex parte Christy, 3 How. 296, 322, 11 L. Ed. 603; In re Bininger, 7 Blatchf. 159, Fed. Cas. No. 1,417. See, also, U. S. v. Williams, 14 C. C. A. 440, 67 Fed. 384. In the case referred to in the petition herein the appellate jurisdiction of this court has never been invoked, perhaps never may be, and, on reason and authority, we have no jurisdiction at this time to issue any writ. Whether or not, after final decision in the circuit court, a writ of error will lie to this court is perhaps open to some question. Certainly the supreme court, through a long line of decisions ending in Chetwood’s Case, 165 U. S. 443, 462, 17 Sup. Ct. 385, 41 L. Ed. 782, held that “judgments in proceedings in contempt are not reviewable here on appeal or error,” — citing Hayes v. Fisher, 102 U. S. 121, 26 L. Ed. 95; In re Debs, 158 U. S. 564, 573, 15 Sup. Ct. 900, 39 L. Ed. 1092; Id., 159 U. S. 251, 15 Sup. Ct. 1039.

But in Tinsley v. Anderson, 171 U. S. 101, 105, 18 Sup. Ct. 805, 43 L. Ed. 91, referring to the statement in Chetwood’s Case, the su'preme court said:

“But that statement was made in regard to such judgments in independent proceedings for contempt in the circuit courts of the United States, and the reason is, as in cases referred to in Hayes v. Fisher, above cited, such . judgments were considered as judgments in criminal cases in which this court had no appellate jurisdiction of those courts.”

Now, it may be that under the act of March 3, 1891, creating the circuit courts of appeals, wherein appellate jurisdiction is conferred upon this court to review by appeal or writ of error final decisions of the district and existing circuit courts in criminal cases, a writ •of error will lie from a judgment of conviction and the imposition of a fine or imprisonment in an independent proceeding for contempt in one of the circuit courts of the United States in this circuit, but, if this be so, it cannot avail the petitioner herein at this time. The general rule is that where relief can be obtained through the usual course by writ of error extraordinary writs will not issue. In re Tampa Suburban R. Co., 168 U. S. 583, 587, 18 Sup. Ct. 177, 42 L. Ed. 589.

Writ of prohibition denied.