The Act of Congress passed on 27 February, 1801, 2 Stat. 103,
authorizes a writ of error from this Court to the Circuit Court for
the District of Columbia in those cases only where there has been a
final judgment, order, or decree in that court.
Where the orphans' court directed an issue to be sent for trial
in the circuit court, which issue was "whether the petitioner was
the widow of the deceased or not," and the circuit court proceeded
to try the issue, and the jury, under the instructions of the
court, found that the petitioner was not the widow, exceptions to
these instructions cannot be reviewed by this Court on a writ of
error.
The certificate of the finding of the jury, transmitted by the
circuit court to the orphans' court, was not such a final judgment,
order, or decree as is included within the statute. After the
reception of the certificate, the orphans' court had still to pass
a decree in order to settle the rights of the parties.
All the circumstances of the case are fully set forth in the
opinion of the Court, as delivered by MR. CHIEF JUSTICE TANEY, from
the commencement of which the Reporter extracts the following
statement.
A motion has been made to dismiss this case, which is brought
here by writ of error directed to the circuit court for Washington
County, in the District of Columbia.
The case is this. John P. Van Ness, of the same county and
district, died intestate, and letters of administration were
granted by the orphans' court to Cornelius P Van Ness, his brother,
who is the defendant in error.
Shortly after the letters were granted, Mary Ann Van Ness, the
plaintiff in error, filed her petition in the Orphans' court,
alleging that she was the widow of the deceased, and praying that
the letters granted to the defendant should be revoked, and
administration granted to her. The defendant answered, denying that
she was the widow of the deceased. The right to the letters
depended upon this fact; as by an act of assembly of Maryland
passed in 1798, and adopted by Congress when it assumed
jurisdiction over this district, the widow is
Page 47 U. S. 63
entitled to letters of administration, in preference to any
other person, where the husband dies intestate.
This act of assembly, 1798, ch. 101, subchap. 8, sec. 20, and
subchap. 15, sec. 16, 17, makes it the duty of the orphans' court
in a case like this, if required by either party, to direct an
issue to be sent for trial to any court of law most convenient for
trying it, and the court to which it is sent is authorized to
direct the jury, and to grant a new trial if it thinks proper, as
if the issue were in a suit therein instituted; and upon a
certificate from such court, or a judge thereof, of the verdict or
finding of the jury, under the seal of the court, the orphans'
court is directed to give judgment upon such finding. It is
unnecessary to give the words of the act. We state its provisions
only so far as they relate to the case before us.
When the answer of the defendant came in, the orphans' court,
upon the motion of the plaintiff, ordered the following issue to be
made up and sent to the Circuit Court for Washington County, to be
there tried; that is to say, "whether the said Mary Ann Van Ness be
the widow of the said John P. Van Ness or not." No depositions or
other testimony were taken on either side in the orphans'
court.
The circuit court proceeded to the trial of the issue, and in
the course of the trial sundry directions were given to the jury,
to which the plaintiff excepted; and finally, as appears by the
eleventh exception, the court instructed the jury that there was no
evidence from which they could find that the plaintiff was lawfully
married to John P. Van Ness, the intestate. Under this direction,
the jury found by their verdict that Mary A. Van Ness was not the
widow of the late John P. Van Ness, and this finding was, by order
of the court, certified under seal to the orphans' court.
This is the case before us, upon the record brought here by the
writ of error, and the question to be decided is whether this Court
can take cognizance of the case and inquire whether error has or
has not been committed by the circuit court in giving the
instructions under which the verdict was found.
Page 47 U. S. 67
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
After stating the case, as above recited, the opinion proceeded
as follows:
The appellate power of this Court in relation to the Circuit
Court for the District of Columbia is regulated by the Act of
Congress of February 27, 1801. And it authorizes the writ of error
to the circuit court in those cases only in which there has been a
final judgment, order, or decree in that court. Whatever errors,
therefore, may have been committed, and however apparent they may
be in the record, yet we have not the power to correct them unless
the circuit court has passed a final judgment, order, or decree in
the case before it.
The argument on the part of the plaintiff is that inasmuch as
the verdict was found in obedience to the positive instructions of
the court, and as the certificate of the finding of the jury was
conclusive upon the orphans' court, the order of the circuit court
to certify the verdict to the orphans' court ought to be regarded
as a final judgment or order within the meaning of the act of
Congress.
It is true the orphans' court has no power to grant a new trial,
and is bound to consider the fact to be as found by the jury, and
consequently the judgment of that court must be against the
plaintiff. But the matter in contest in the orphans' court is the
right to the letters of administration. And it is the province of
that court to apply the law upon that subject to the fact, as
established by the verdict of the jury, and to make their decree
accordingly; refusing to revoke the letters
Page 47 U. S. 68
granted to the defendant, and dismissing the petition of the
plaintiff. The suit between the parties must remain still pending
until that decree is pronounced. The certificate from the circuit
court is nothing more than evidence of the finding of the jury upon
the trial of the issue. It merely certifies a fact -- that is to
say that the jury had so found. And the order of the circuit court
directing a fact to be certified to another court to enable it to
proceed to judgment can hardly be regarded as a judgment, order, or
decree, in the legal sense of these terms as used in the act of
Congress. Certainly it is not a final judgment or order. For it
does not put an end to the suit in the orphans' court, as that
court alone can dismiss the petition of the plaintiff which is
there pending, and no other court has the power to pass a judgment
upon it. A verdict in any court of common law, if not set aside, is
in all cases conclusive as to the fact found by the jury, and the
judgment of the court must follow it, as the orphans' court must
follow the verdict in this case. Yet a writ of error will not lie
upon the verdict.
And if this Court should take jurisdiction, and should determine
that the circuit court had erred in its directions to the jury,
what judgment could be given here? Could we give a judgment
reversing an order which does nothing more than direct a fact to be
certified to another court? If we could do this, it would not reach
the judgment in the orphans' court, nor exercise any control over
it. And a writ of error can hardly be maintained where the judgment
of the appellate court would be ineffectual and nugatory.
Neither could it make any difference as to the jurisdiction of
this Court, if there had been a feigned issue with formal
pleadings, and the circuit court had entered a judgment upon the
verdict. For the judgment would have had no effect upon the rights
of either party to the administration in dispute, nor could it
exercise any influence upon the decision of the orphans' court. And
if this Court could have regarded the feigned issue as an action
regularly brought in the circuit court, and upon that ground have
taken jurisdiction, the affirmance or reversal of the judgment
would have had as little effect upon the proceedings in the
orphans' court as the original judgment in the circuit court. It
would indeed decide the right to the fictitious wager stated in the
pleadings. But if the judgment of the circuit court was reversed
and a
venire de novo awarded, it would not alter the
decree in the orphans' court. That court is required by law to act
upon the finding of the jury, and not upon the judgment of the
circuit court. And the reversal of that judgment and a new
Page 47 U. S. 69
finding would not authorize the orphans' court to recall the
judgment it had given, and was bound to give upon the original
verdict certified by the circuit court.
The act of assembly of Maryland appears to have received in
practice in that state the same construction that we have given to
it. There is, indeed, no judicial opinion on the subject; but there
is no ground for supposing that a writ of error was ever sued out
under that law. In 1832, an act was passed authorizing a writ of
error in such cases and staying proceedings in the inferior courts
until a decision was had in the appellate court, and this law
embraces cases which had been tried before its passage as well as
those which should afterwards take place. But from 1798 down to the
passage of this act of assembly, we can find no trace of a writ of
error sued out in a case like this. The absence of any such
proceeding for so many years is the strongest evidence of the
construction put upon the law and of the opinion entertained by the
bar of the state that the writ would not lie. For many issues from
the orphans' courts must have been tried during that period of time
which would have given rise to the writ of error if it had been
supposed to be warranted by the law. The act of 1832 also,
embracing as it does prior as well as future cases, would have been
altogether unnecessary if a different construction had been given
to the act of 1798.
Upon the whole, therefore, this Court is of opinion that there
has been no final judgment, order, or decree in the circuit court,
and the writ of error must be
Dismissed for want of jurisdiction.
Order
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
Columbia holden in and for the County of Washington and was argued
by counsel. On consideration whereof it is now here ordered and
adjudged by this Court that this cause be and the same is hereby
dismissed for want of jurisdiction.
