67 F. 384 | 8th Cir. | 1895
On a previous day of the present term the relator, William H. Fisher, obtained a rule on the respondent, the Honorable John A. Williams, United States district judge for the Eastern district of Arkansas, requiring him to show cause why a writ of prohibition should not issue to prohibit him from retrying a case said to be pending in the circuit court of the United States for the Western division of the Eastern district of Arkansas, wherein the relator, William H. Fisher, is complainant, and Charles M. Simon, the Arkansas Stables (a corporation), Max Markley, J. C. Herold, and R. B. Hornor are defendants. The information on which the rule was obtained alleged in substance, that in the aforesaid suit a final decree in favor of the relator, William H. Fisher, was entered at the April term of said court for the year 1893, and that at the succeeding October term of said court for the year 1893 said decree was vacated and set aside by said respondent, while acting as judge of said court; that, in vacating and s'etting aside said final decree at a subsequent term of said court, the respondent had exceeded his jurisdiction, and had acted wholly without authority of law, for which reason the relator averred that the order vacating said decree was and is utterly void, and of no effect. The return to the rule to show cause, which has since been filed by the respondent, discloses the following facts: That the final decree in favor of the complainant, Fisher, in the suit above described, was entered on Saturday, October 21, 1893, the same being the last day of the April term, 1893, of the circuit court of the United States for the Western division of the Eastern district of Arkansas; that said decree was handed to the respondent at his chambers on said day by the relator’s then counsel, with the request that it be signed, counsel for the complainant stating to the respondent at the time that it was an interlocutory decree; that,
Such power as this court has to issue writs of prohibition is undoubtedly derived from section 12 of the act of March 3, 1891 (28 Stat. 826, c. 517; 11 C. C. A. xx.), which confers on the circuit court of appeals the powers specified in section 718 of the Revised Statutes of the United States; and that section grants to the supreme court and the circuit and district courts authority “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.” It has been held on several occasions that a court of the United States which derives its power to issue writs of prohibition solely from section 716 of the Revised Statutes cannot issue the writ unless it becomes necessary for the efficient exercise of the particular jurisdiction with which it has been vested. In re Bininger, 7 Blatchf. 159, 3 Fed. Cas. No. 1,417; Ex parte Christy, 3 How. 296, 332; Ex parte Gordon, 1 Black. 503, 505. On the strength of these adjudications, it is strenuously urged by counsel for the respondent that the court is without power, in the present instance, to issue a writ of prohibition, because, as it is said, the act threatened to be done, to wit, the retrial of the case of Fisher v. Simon et al., is not an act which tends in any wise to obstruct, or to interfere with the proper exercise of, any jurisdiction now lodged in tills court. .We have not found it necessary, in the present case, to inquire as to the extent of our power to issue writs of prohifcitioxi, but it may be well to state, in explanation of the rule to show cause, heretofore entered, that when the rule was applied for an appeal was pending in this court from the order made by the circuit court of the United States for the Western division of the Eastern district of Arkansas vacating the final decree in the case of Fisher v. Simon et al. The application for the rule to show cause was doubtless based on the theory that the pendency of the appeal gave this court such jurisdiction over the case as would warrant it in granting a writ of prohibition to prevent a retrial of the case until