§ 467. Appeals in habeas corpus proceedings. Before the Evarts Act of March 3, 1891, an appeal might be taken to the Supreme Court from the final decision of a Circuit Court of the United States, upon an application for a writ of habeas corpus, or upon such writ when issued, in the case of any person alleged to be restrained of his liberty in violation of the Constitution or of any law or treaty of the United States; and in the case of a prisoner who, being a subject or citizen of a foreign state and domiciled therein, was committed or confined, or in custody by or under the authority or law of the United States, or of any State, or process founded thereon, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, order, or sanction of any foreign state or sovereignty, the validity and effect whereof depended upon the law of nations, or under color thereof.1 No appeal lay from a decision of a judge of a District Court of the United States, either to the Supreme Court,2 or to a Cir

§ 467. 1 U. S. R. S., § 764, as amended by 23 St. at L., ch. 353, p. 437.

2 Carper v. Fitzgerald, 121 U. S. 87, 30 L. ed. 882. In that case the petition was presented to the Circuit Judge at his chambers in Baltimore. He directed the clerk of the Circuit Court for the Eastern District of Virginia, within which the petitioner was imprisoned, to issue a writ returnable before him at the United States Court House in Baltimore. The writ was accordingly issued, under the seal of the court in the usual form of Circuit Court writs, returnable "before the Honorable Hugh L. Bond, Judge of our Circuit Court of the United States for the Eastern District of Virginia, sitting at the United States Court House in Baltimore, Maryland." Upon a demurrer to the return of the writ, an order of discharge was entered. At the foot

of this order was the following: "And it is ordered that the papers in this case be filed in the Circuit Court of the United States at Richmond, Virginia, and that this order be recorded in said court. Hugh L. Bond, Circuit Judge.'' The order was held to be not a court order, but a judge's order, and consequently appealable, although Supreme Court, although it had been docketed there as an appeal from the Circuit Court.

Re Palliser, 136 U. S. 257, 34 L. ed. 514, the following order was held by the Supreme Court to be a court order and not a judge's order, and consequently appealable, although the Circuit Court which rendered it was of a contrary opinion:

"In the matter of the petition of Charles Pallister for the writ of

habeas corpus. Upon reading and filing the petition of Charles Palliser, sworn to November 26, 1889,

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cuit Court of Appeals.3 From the final decision of a justice or judge of the United States inferior to the Circuit Court, upon an application for a writ of habeas corpus, or upon such writ when issued, an appeal, before the Evarts Act of March 3, 1891, might be taken to the Circuit Court for the district in which the cause was heard, under the same circumstances as would authorize an appeal from a Circuit Court to the Supreme Court.4

The Supreme Court may review an order of a District Court upon an application for the writ of habeas corpus when a constitutional or a jurisdictional question or a question involving

5

and the writs of habeas corpus and certiorari thereupon issued, directed to Hon. Martin T. McMahon, marshal for the United States for the Southern District of New York, and the Hon. John A. Shields, United States Commissioner, and returns to said writs made by said marshal and said commissioner;

now

after hearing Roger Foster, Esq., of counsel for Charles Palliser, in support of an application for the discharge of said Palliser from custody, said Palliser having been produced before this court by said marshal in obedience to said writ of habeas corpus; and after hearing Daniel O'Connell, Esq., Assistant United States Attorney, in opposition to said application, and in support of an application to remand said Palliser to custody, and due deliberation having been had, it is

"Ordered that said writ be dismissed, and that said Palliser be, and he hereby is, remanded to the custody of the said Martin T. McMahon, marshal of the United States for the Southern District of New York.

"E. Henry Lacombe." See also Carico v. Wilmore, 51 Fed. 200; Re King, 51 Fed. 434, 440.Fed. Prac. Vol. III-11

The order is appealable when the writ was granted at chambers, but the order discharging the prisoner was entered at a stated term of the Circuit Court. Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399. The hearing of the argument in chambers is immaterial when no objection was made upon that ground below and the order is a court order. Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544. The Supreme Court cannot review a decision of a District Court upon an application for the writ because of a certificate of a division between two judges. Ex parte Fom v. Fong, 108 U. S. 556, 27 L. ed. 826; Ex parte Cota, 110 U. S. 385, 28 L. ed. 172. Ex parte Jacobi, 104 Fed. 681.

3 Ibid.

4 U. S. R. S., § 763.

5 Ekiu v. U. S., 142 U. S. 651, 35 L. ed. 1146; Horner v. U. S., 143 U. S. 207, 36 L. ed. 126; Re Arnstein, s. c., U. S., Nov. 8, 1920; Horn v. Mitchell, 243 U. S. 247; Re Marmo, 138 Fed. 201; Collins v. Board of Control, C. C. A., 219 Fed. 885, infra, Chapter XXXIV on Writs of Error and Appeals.

6 Kentucky v. Powers, 201 U. S. 1, 50 L. ed. 633; infra, Chapter

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PRACTICE AT COMMON LAW IN CIVIL ACTIONS [§ 467

the construction of a treaty is involved." In the case of a jurisdictional question which does not involve the construction of the Constitution of the United States, that question alone is certified to the Supreme Court by the court below. Where the dispute is as to an excess of jurisdiction in a case where initial jurisdiction was possessed by the court below, the Supreme Court has no immediate jurisdiction of review. It has been held that the Supreme Court of the United States will not take jurisdiction of an appeal from an order of the Supreme Court of a Territory within the United States, which awards the custody of a child, three years of age, to one of several claimants.10 In other cases of habeas corpus the Circuit Court of Appeals may review the decisions of the District Courts, 11 and perhaps those of the District Judges at chambers.12

XXXIV on Writs of Error and Appeals.

7 Jud. Code, § 250, re-enacting 26 St. at L. 827, §5; Wright v. Henkel, 190 U. S. 40, 47 L. ed. 948; Horn v. Mitchell, 243 U. S. 247; Collins v. Miller, 252 U. S. 364.

8 Jud. Code, § 250, re-enacting 26 St. at L. 826, § 4.

9 Ex parte Jim Hong, C. C. A., 211 Fed. 73.

10 N. Y. Foundling Hospital v. Gatti, 203 U. S. 429, 51 L. ed. 254.

11 26 St. at L. 826, § 5; Lau Ow Bew v. U. S., 144 U. S. 47, 36 L. ed. 340; U. S. v. Fowkes, 53 Fed. 13; King v. McLean Asylum of Mass. Gen. Hospital, C. C. A., 64 Fed. 325; Tang Tun v. Edsell, 223 U. S. 673, 56 L. ed. 606.

Prior to the abolition of the District Courts, it was provided by the Revised Statutes. "§ 763. From the final decision of any court, justice, or judge inferior to the circuit court, upon an application for a writ of habeas corpus or upon such writ when issued, an appeal may be taken

to the circuit court for the district in which the cause is heard:

"1. In the case of any person alleged to be restrained of his liberty in violation of the Constitution, or of any law or treaty of the United States.

2. In the case of any prisoner who, being a subject or citizen of a foreign state, and domiciled therein, is committed or confined, or in custody by or under the authority or law of the United States, or of any State, or process founded thereon, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, order, or sanction of any foreign state or sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof."

"§ 764. From the final decision of such circuit court an appeal may be taken to the Supreme Court in the cases described in the preceding section."

12 Webb v. York, C. C. A., 74 Fed.

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Where there is no question as to the jurisdiction to grant the writ of habeas corpus, but the application attacks collaterally another judgment, decree or order of the same or another court, it seems that the appeal lies only to the Circuit Court of Appeals, unless a constitutional or a treaty question is distinctly raised below; 13 or, perhaps, unless in the case of a "prisoner who, being a subject or citizen of a foreign state and domiciled therein, is committed or confined, or in custody by or under the authority or law of the United States, or of any State, or process founded thereon, for or on account of any act done or committed under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, order, or sanction of any foreign state or sovereignty, the validity or effect whereof depend upon the law of nations, or under color thereof."14 In the latter case the Supreme Court may have jurisdiction to review the decision of the Circuit Court of Appeals upon an appeal from an order of a District Judge as well as from an order of a District Court.15

Where there has been a trial by jury the order is usually reviewed by writ of error.16 In other cases usually by appeal.17 An appeal to a Circuit Court of Appeals from an order or judgment upon a writ of habeas corpus must be taken within six months from the judgment or order appealed from.18 An appeal to the Supreme Court from the judgments and orders of the District Courts and, of the District Judges, upon writs of habeas corpus, must be taken within three months from the judgment or order of which complaint is made.19 The same limitation applies to appeals from orders or judgments of the Circuit Courts of Appeals which review decisions of the District Courts and District Judges.20

The Supreme Court may by certiorari review any decision of a Circuit Court of Appeals in such a case; and a Circuit Court

753. Held that they cannot. Hoskins v. Funk, C. C. A., 239 Fed. 278.

13 Re Lemon, 150 U. S. 393, 37 L. ed. 1120; Dimmick v. Tompkins, 194 U. S. 540, 48 L. ed. 1110.

14 U. S. R. S., § 763.

15 Ibid.

16 U. S. ex rel. Rakies v. Uhl, C. C. A., 266 Fed. 646. 17 Ibid.

18 39 St. at L. 729, infra, § 698. 19 Re Lennon, 150 U. S. 393. 37 L. ed. 1120.

20 Ibid.

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PRACTICE AT COMMON LAW IN CIVIL ACTIONS [§ 467

of Appeals may certify to the Supreme Court any questions or propositions of law arising therein, concerning which it desires instruction.21

No appeal lies to the Supreme Court from a decree, or judgment, or order, of a court of the District of Columbia upon a writ of habeas corpus.22

No writ of error lies to, nor can an appeal be taken from a judgment or order of a District Court upon an application for the writ unless such judgment or order finally disposes of the matter.23 When the petitioner was committed upon three charges, as to one of those his application for relief was denied and as to the other a further hearing was directed; it was held that the judgment was not final and could not be reviewed.24

No writ of error lies to the order or judgment of a District Court granting an application for a writ of habeas corpus.25 Nor from an order overruling a demurrer to the petition for the writ.26 An appeal can be taken from an order refusing to grant the writ in the same manner as from an order refusing to discharge the prisoner upon the return.27 A Circuit Court refused to allow an appeal from an order denying the writ in a capital case where the conviction had been affirmed by the Supreme Court of the United States and the case was clearly frivolous.28

Where the petition was based upon the ground that excessive bail was required, and before the decision below the bail was furnished, the appeal from the judgment denying the writ was dismissed.29

Upon an appeal from a decision upon an application for the writ of habeas corpus, the appellate court has the power to

21 Jud. Code, § 251, re-enacting 26 St. at L. 826, § 6; Lau Ow Bew v. U. S., 144 U. S. 47, 36 L. ed. 340.

22 Cross v. Burke, 146 U. S. 82, 36 L. ed. 896.

23 Ollins v. Miller, 252 U. S. 364. 24 Ibid.

25 Re Morrissey, 137 U. S. 157, 158, 34 L. ed. 644, 645; Re Neagle, 135 U. S. 1, 42, 34 L. ed. 55, 63;

Rainbow et al. v. Young, C. C. A., 154 Fed. 489.

26 Backus v. Yep Kim Yuen, C. C. A., 227 Fed. 848.

27 Ex parte Snow, 120 U. S. 274, 30 L. ed. 658.

28 Re Durrant, 84 Fed. 314. But see Re Marmo, 138 Fed. 201; supra, § 466.

29 Johnson v. Hoy, 227 U. S. 245, 57 L. ed. 497.