Section 299 of the Judicial Code of March 3, 1911, 36 Stat.
1087, c. 231, saving suits pending on appeal, does not give the
right of appeal from judgments of the Court of Appeals of the
District of Columbia in cases covered by the statutes repealed by
the Judicial Code and in which the cause of action accrued prior to
January 1, 1912, but which were not decided by the Court of Appeals
until after that date.
Appeal from 40 Wash.L.Rep. 146 denied.
Writ of error to review 40 Wash.L.Rep. 228 denied.
The facts, which involve the construction of the provisions of
the Judicial Code of March 3, 1911, in regard to appeals to this
Court from the Court of Appeals of the District of Columbia, are
stated in the opinion.
Page 224 U. S. 489
MR. JUSTICE HOLMES delivered the opinion of the Court.
These are applications for the allowance of an appeal and writ
of error, respectively. The cases come before the Court under the
same circumstances as the application for a writ of error, just
decided.
American Security & Trust Co. v. District of
Columbia, post, p.
224 U. S. 491.
The first named is a bill in equity that was pending in the
Court of Appeals on January 1, 1912, and decided on March 4, 1912.
The matter in dispute in both, exclusive of costs, exceeds the sum
of $5,000. The law before the enactment of the Judicial Code of
March 3, 1911, c. 231, 36 Stat. 1087, allowed a writ of error or
appeal in such cases, Act of February 9, 1893, c. 74, § 8, 27 Stat.
436, and the applicants contend that the appeal and writ of error
are rights saved by § 299 of the Code. That section is as
follows:
"The repeal of existing laws, or the amendments thereof,
embraced in this Act shall not affect any act done, or any right
accruing or accrued, or any suit or proceeding, including those
pending on writ of error, appeal, certificate, or writ of
certiorari, in any appellate court referred to or included within
the provisions of this Act pending at the time of the taking effect
of this Act, but all such suits and proceedings, and suits and
proceedings for causes arising or acts done prior to such date may
be commenced and prosecuted within
Page 224 U. S. 490
the same time, and with the same effect, as if said repeal or
amendments had not been made."
This act took effect when this suit was pending in the Court of
Appeals, on January 1, 1912.
The purpose of the act in the matter of appeals from the Court
of Appeals of the District was to make a substantial change and to
do away with them except in classes of cases of which this is not
one. There seems to be little if any more reason for preserving a
further appeal in cases then before the Court of Appeals than there
is in those in which no writ had been sued out, but the cause of
action had accrued before January 1, 1912, which is nothing at all.
It must appear clearly, therefore, that this case is saved, or it
will fall under the general rule. We find no clear expression of
such intent. The general provision that the repeal shall not affect
any right or suit is ambiguous, and is qualified and explained by
the words, "including those pending on appeal," etc., which suggest
that, but for them, appeals already taken would have fallen.
Baltimore & Potomac R. Co. v. Grant, 98 U. S.
398. If express words were thought necessary to save
pending appeals,
a fortiori such words were needed to save
appeals not yet taken, and no such words were used. The first part
of the section, declaring what shall not happen, is elucidated by
the antithetical statement, in the last part, of what shall take
place. We gather from that that all suits upon causes of action
that arose before January 1 stand alike. We cannot suppose that a
suit not yet begun can be taken to this Court on the ground that a
sum of more than $5,000 is involved, and we are of opinion that the
applicant makes no better case. We agree with the Court of Appeals
that the act saves jurisdiction when an appeal has been taken, but
does not save an appeal for all suits in causes of action accrued
before this year.
Leave to appeal and writ of error denied.