Nelson v. Carland

42 U.S. 265, 11 L. Ed. 126, 1 How. 265, 1843 U.S. LEXIS 306

Opinions

Mr. Chief Justice TANEY

delivered the opinion of the court.

In the case of William Nelson, petitioner in bankruptcy in the 'Kentucky district, against Daniel Garland, an opposing creditor, several points were adjourned by the District to' the Circuit Court. Upon the hearing in the last-mentioned court, the district judge, as well as the justice of the Supreme Court, sat in the case; and being opposed in opinion upon the questions adjourned, they were certified to this court upon the motion of the counsel, for the petitioner.

The first question that presents itself upon this .certificate, is, whether the Supreme Court have jurisdiction in' the- matter in this form of proceeding.' And after examining-the printed argument filed by the counsel for the petitioner, and carefully, considering the subject, the court are of opinion that the district judge cannot sit as a member of the Circuit Court, upon, questions adjourned to that court, under the “ Act to establish a uniform system of bankruptcy throughout the United States;” and that, consequently, the points adjourned cannot be brought before this court by a "certificate of division. Nor will an appeal or writ of error lie from the decision of the Circuit Court; and it is-conclusive upon the district judge.

In delivering the opinion of the court, it is, however, proper for me'to say, that I dissent from that part of it which excludes the district judge from sitting as a member of the Circuit Court in. a case of this description. Yet I concur in the judgment dismissing these-proceedings; being of opinion that the act of Congress .of-1802, authorizing the • certificate of division where the judges of the Circuit. Court are opposed in opinion, does not apply to the peculiar and summary jurisdiction directed to be exercised .in cases of bankruptcy.

The proceedings must therefore be dismissed for. want óf juris- ■ diction.