90 U.S. 294 | SCOTUS | 1875
GREGORY
v.
McVEIGH.
Supreme Court of United States.
*298 Mr. P. Phillips, in support of the motion to dismiss for want of jurisdiction.
Mr. S.F. Beach, contra.
*302 *305 The CHIEF JUSTICE delivered the opinion of the court.
The motion to dismiss this cause for want of jurisdiction is denied.
"A final judgment or decree in any suit, in the highest *306 court of a State in which a decision in the suit could be had," may in a proper case be re-examined in this court.[*]
The Court of Appeals is the highest court in the State of Virginia. If a decision of a suit could be had in that court, we must wait for such a decision before we can take jurisdiction, and then can only examine the judgment of that court. If, however, the suit is one of which that court cannot take jurisdiction, we may re-examine the judgment of the highest court which, under laws of the State, could decide it.[]
The Court of Appeals has revisory jurisdiction over the judgments of the Corporation Court of the city of Alexandria, but parties are not permitted, in the class of cases to which this belongs, to take such judgments there for review as a matter of right. Leave for that purpose must first be obtained. Two modes of obtaining this leave are provided. One by petition to the Court of Appeals itself, and the other by petition to a judge thereof. If the petition is presented to a judge and he denies it generally, without more, it may be again presented to the court. But if the judge to whom the application is made "shall deem the judgment, &c., plainly right," and reject it on that ground, if the order of rejection shall so state, no other petition shall afterwards be presented to the same purpose.[] The parties are left free to present their petitions to the court or to a judge thereof, as they may find it most convenient or desirable.
It has long been settled that if a cause cannot be taken to the highest court of a State, except by leave of the court itself, a refusal of the court upon proper application made to grant the leave, is equivalent to a judgment of affirmance, and is such a final judgment as may be made the basis of proceedings under the appellate jurisdiction of this court.[§]
In the present case the Court of Appeals has now no power to review the judgment of the court below. It cannot *307 even entertain a motion for leave to proceed. A judgment has been rendered by the highest court of the State in which a decision can be had. The Court of Appeals has never, in fact, had jurisdiction. A suit cannot be taken there, except upon leave, and that leave has, in the regular order of proceeding, been refused in this case. From this refusal there can be no appeal. Everything has been done that can be to effect the transfer of the cause. The rejection of a petition by one judge does not prevent its presentation to another. Here the petition has been presented to each and every one of the judges, and they have all rejected it because the judgment was "plainly right." Thus the doors of the Court of Appeals have been forever closed against the suit; not through neglect, but in the regular order of proceeding under the law governing the practice.
We think, therefore, that the judgment of the Corporation Court of the city of Alexandria is the judgment of the highest court of the State in which a decision of the suit could be had, and that we may re-examine it upon error.
Without stopping to discuss the other question presented by the motion, it is sufficient to say that we think the case involves the consideration of a Federal question. The proceeding in the District Court was under the authority of the United States, and its validity is drawn in question.
MOTION DENIED.
NOTES
[*] Revised Statutes, § 709.
[] Downham v. Alexandria, 9 Wallace, 659.
[] Code of Virginia, 1873, chapter 178, § 10.
[§] Railroad Co. v. Railroad Co., 13 Howard, 80.
