In a proceeding in prohibition, wherein a district judge had
been ruled to show cause why the execution of an order should not
he restrained for want of jurisdiction, a request was made on the
return day, by the persons interested in upholding the order, that
a return tendered by them be accepted as the return to the rule and
that they be treated as the respondents.
Held that the
judge is the essential party respondent, and the request must
therefore be denied. No return having been made by the respondent
on the return day, the time for his return is, under the
circumstances, extended.
The facts are stated in the opinion.
Memorandum opinion by MR. CHIEF JUSTICE WHITE, by direction of
the Court:
Speaking in a general sense, on the ground that in an admiralty
cause pending in the District Court of the United States for the
Northern District of Illinois, one of the judges of that court had,
by an order which he was absolutely devoid of jurisdiction to make,
permitted more than 270 persons to become co-libellants, an
application by the defendant in the cause was made on the 16th day
of October, 1916, for leave to file a petition for prohibition
directed to the judge in question to prevent the carrying out of
the order. On the twenty-third of October,
Page 242 U. S. 282
permission to file the petition for prohibition was granted and
a rule to show cause was directed to be issued to the Honorable
Kenesaw M. Landis, the judge by whom the order complained of was
made. On the day upon which this rule was returnable, December 4,
there was no response to the rule made on behalf of the respondent
judge, but by oral motion a request was made on behalf of the
parties who, it was asserted, had been mistakenly permitted to
become co-libellants, that they be treated as the respondents to
the rule, and be permitted in that capacity to file a return to the
rule, a copy of which return was prepared to be filed and presented
for filing in case the permission asked was granted, and that
request is the matter now before us for consideration.
We are of opinion, however, that the substitution of respondents
asked for cannot be granted, since it is apparent that the judge
who rendered the order and against whom the writ prayed for, if
allowed, is to be directed, is the essential party respondent,
however much, when his return to the rule is made, either by his
authority, or because of their interest in the result, or as
friends of the court, the persons to be adversely affected by the
granting of the relief prayed may be heard to sustain the
sufficiency of the return when that subject arises for
consideration. We therefore transfer the date fixed for the return
in the original rule to show cause from the fourth day of December,
1916, to the fifteenth day of January, 1917, in order to afford
ample opportunity for the making by the respondent judge of the
return which the original order calls for.
And it is so ordered.