The defendant in an action of detinue died previous to the
return day of the term, and at the term his death was suggested,
and a
scire facias was issued to his executors, to a
subsequent term, and the plaintiff moved the court to revive the
suit against them, which motion, on argument, was overruled and the
suit abated. On a day afterwards in the same term, the plaintiff's
attorney moved the court to rescind the order refusing to revive
the suit, and upon this motion the judges were opposed in opinion
whether the action could be revived against the personal
representatives of the defendant, which division was certified to
the Supreme Court.
Held that the question cannot be
brought up on
a certificate of division. There was not, in strictness, any
cause in court. The insurmountable objection is that the granting
or refusing the motion was a matter resting in the discretion of
the court, and did not present a point that could be certified
under the act of Congress. Although the words of the act are
general that whenever any question shall occur before a circuit
court upon which the opinion of the judges shall be opposed, the
point shall be certified, &c., yet it is very certain that this
cannot embrace every question that may arise in the progress of a
cause from its commencement. There may be many motions made in the
different stages of a cause before trial that could not be brought
here under a certificate of division, such as motions for
amendments, for commissions, for continuances, &c., and various
other motions that arise in the progress of a suit which, if
brought up in this manner, would occasion great delay and expense.
These and all other questions resting in the discretion of the
circuit court are not to be reviewed here.
The questions which may be certified are those which may arise
on the trial of a case, and are such as may be presented upon the
final hearing of a cause or pleas to the jurisdiction of the court.
The motion in the present case does not stand on stronger grounds
than a motion for a new trial, and it has been decided in this
Court in the case of
United States v.
Daniel, 6 Wheat. 542, 5 Cond. 170, that a division
of opinion upon such a motion cannot be brought here by a
certificate of a division of opinion in the circuit court, and the
reason assigned is that the granting or refusing a new trial is a
mere matter of discretion, and the refusal, although the grounds of
the motion be spread upon the record, is no sufficient cause for a
writ of error. The effect of the division is that the motion is
lost; so in the present case, the effect of the division of opinion
is that the motion is lost, and the plaintiff is driven to a new
suit.
The court does not mean to decide definitively that no question
can be brought here upon a certificate of a division of opinion
unless the points arose upon the trial of the cause, but is very
much induced to think that such is the true construction of the
act; but from the general words used, cases may possibly arise that
we do not foresee.
Page 35 U. S. 287
At September term, 1825, an action of detinue was instituted in
the circuit court by John H. Davis against Alexander Braden to
recover a negro slave. During the progress of the suit the
plaintiff died, and the suit was revived in the name of Elizabeth
Davis, his administratrix, on 1 October, 1830. Afterwards the
defendant Alexander Braden died, and at September term, 1832, his
death was suggested by the plaintiff, and at September term, 1833,
the court made an order as follows:
"It appearing to the court that the death of the defendant was
suggested at the last term of this Court, and no steps having been
since taken to revive the suit against the representatives of said
defendant, it is ordered that the same abate."
Afterwards, at the same term, the order abating the suit was set
aside, and a
scire facias was issued to his executor, and
on the return of the same in September, 1834, a motion to revive
the suit against the executor of Alexander Braden was upon argument
overruled. On a day afterwards in the same term, the plaintiff's
counsel moved to rescind this order, and the court directed the
following to be entered of record,
viz.,
"This was an action of detinue founded on a tort, brought by the
plaintiff against Alexander Braden, the defendant, for the wrongful
detention of a slave. The defendant, Braden, died previous to
September term 1832, before the suit could be tried. His death was
suggested at September term, 1832, and a
scire facias
issued against Margaret Braden and Harvey Braden, his personal
representatives, since the last term, returnable to the present
term, to show cause why the said action should not be revived."
"The personal representatives by their counsel appeared, and
upon argument of the motion whether the said action should or could
be revived against said personal representatives, the opinions of
the judges on said point were opposed. Whereupon, upon motion of
the plaintiff, by her attorney, that the point upon which said
disagreement happened may be stated under the direction of the
judges and certified under the seal of the court to the Supreme
Court to be finally decided, it is therefore ordered that the
foregoing statement of facts in relation to said disagreement,
which is made under the direction of the judges, be certified
according to the request of the parties and the law in that case
made and provided. "
Page 35 U. S. 288
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This was an action of detinue brought against the defendant for
the wrongful detention of a slave. The defendant died previous to
the term of the Circuit Court in the District of West Tennessee in
September, 1832. His death was suggested at that term, and a
scire facias afterwards issued against Margaret Braden and
Harvey Braden, his personal representatives, returnable at the
September term, 1834, at which term the parties appeared by their
attorneys, and the plaintiff's attorney moved to revive the suit
against the executors of Braden, which motion on argument was
overruled by the court, and the suit abated, and at a subsequent
day in the same term the plaintiff's attorney moved the court to
rescind the order refusing the motion to revive the suit, and upon
this motion the judges were opposed in opinion whether the action
could be revived against the personal representatives of the
defendant, and the case comes here on a certificate of a division
of opinion.
This question cannot, we think, be brought up on a certificate
of division of opinion in the circuit court. There was not, in
strictness, any cause in court. This suit had abated by the death
of the defendant, and the motion to revive it against his personal
representatives had been denied, and the motion on which the
division of opinion arose was to rescind that rule. This motion,
however, being made at the same term in which the motion to revive
had been
Page 35 U. S. 289
overruled, this objection may not be conclusive; but the
insurmountable objection is that the granting or refusing this
motion was a matter resting in the discretion of the court, and did
not present a point that can be certified under the act of
Congress.
Although the words of the act are general that whenever any
question shall occur before a circuit court upon which the opinion
of the judges shall be opposed, the point shall be certified,
&c., yet it is very certain that this cannot embrace every
question that may arise in the progress of a cause from its
commencement. There may be many motions made in the different
stages of a cause before trial that could not be brought here under
a certificate of division, such as motions for amendments, for
commissions, for continuances &c., and various other motions
that arise in the progress of a suit which, if brought up in this
manner, would occasion great delay and expense. These and all other
questions resting in the discretion of the circuit court are not to
be reviewed here.
The first proviso in this section of the act, 3 Laws U.S. 482,
sec. 6, would seem very plainly to indicate that the points which
may be certified to this Court must arise upon some question at the
trial:
"Provided, that nothing herein contained shall prevent the cause
from proceeding if, in the opinion of the court, further
proceedings can be had without prejudice to the merits."
And this construction of the act is in some measure corroborated
by the provision in the former act of 1793, 2 Laws U.S. 366, for
the like purpose, providing for a division of opinion when the
court should be held by the district judge and one of the judges of
the Supreme Court. That act is in terms restricted to questions
arising upon a final hearing of a cause or pleas to the
jurisdiction of the court. The provision in the present act of 1802
was a substitute for that as to the mode of disposing of the
question. But there is nothing in this act affording grounds for
the conclusion that it was intended to enlarge the provision as to
the questions that were to be brought up.
The motion in the present case does not stand on stronger
grounds than a motion for a new trial, and it has been decided in
this Court in the case of
United States v.
Daniel, 6 Wheat. 542, that a division of opinion
upon such a motion cannot be brought here by a certificate of a
division of opinion in the circuit court, and the reason assigned
is that the granting or refusing a new trial is a mere matter of
discretion, and the refusal, although the grounds of the motion be
spread upon the record, is no sufficient cause for a writ of
error.
Page 35 U. S. 290
The effect of the division is that the motion is lost; so in the
present case, the effect of the division of opinion is that the
motion is lost and the plaintiff is driven to a new suit.
It may be supposed that the case of
United
States v. Wilson is an authority for entertaining
the present question, 7 Pet. 154, but that case differs essentially
from this. That case was actually in court, and the motion on which
the judges were opposed in opinion related to proceedings in the
trial of the cause, the prisoner having pleaded guilty; pronouncing
judgment by the court was a part of the trial, and the question
arose upon a motion of the district attorney for judgment. It was
not a matter resting in the discretion of the court whether to give
judgment or not; the court was bound either to pass sentence upon
the prisoner or to discharge him. The point upon which the judges
were divided in opinion did not relate to any matter resting in the
discretion of the court, as to the nature or degree of punishment,
but whether the prisoner was punishable at all or not, and that
depended upon a question of law growing out of the pardon of the
prisoner, and in no respect rested in the discretion of the court.
We do not mean to decide definitively that no question can be
brought here upon a certificate of a division of opinion unless the
point arose upon the trial of the cause, but we are very much
induced to think that such is the true construction of the act. But
from the general words used, cases may possibly arise that we do
not foresee. The question, however, brought up in the present case,
being one resting entirely in the discretion of the court, is
clearly not within the act, and this Court cannot, therefore, take
cognizance of the question.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
West Tennessee and on the point and question on which the judges of
the said circuit court were opposed in opinion and which was
certified to this Court for its opinion agreeably to the act of
Congress in such case made and provided, and was argued by counsel,
on consideration whereof it is the opinion of this Court that it
cannot take cognizance of the question certified, the case being
one resting entirely in the discretion of the circuit court and
therefore clearly not within the Act of Congress of 29 April 1802;
whereupon it is ordered and adjudged by this Court that it be so
certified to the said circuit court.
