1. Real estate being sold under a regular proceeding of the
circuit court, an order of the same Court awarding process to put
the purchaser in possession, is not a decree from which the tenant
can appeal to this Court.
2. If the tenant had an agreement with the purchaser, which gave
him the right to remain in possession, his remedy was a bill for an
injunction, in which a final decree could be passed and an appeal
legally taken.
3. The order of a judge allowing all appeal, so far from being
conclusive upon the Court, does not even imply that the judge
himself has a settled opinion concerning the appellant's right.
The record brought up by this appeal showed that in 1862 a
Page 67 U. S. 542
cause was pending in the Circuit Court for the District of
Columbia designated as
Statham v. Callan. In that cause,
the court made certain decrees and decretal orders in pursuance of
which a sale was made by trustees of some real property in the City
of Washington. The purchaser at the first sale made by the trustees
was J. J. Waring, whose contract was annulled by his failure to
comply with the terms of it. Another sale was then regularly made
under the order of the court to Austin Sherman, who assigned his
right to John Frederick May, and May having fully complied with the
terms of the sale, a final order ratifying and confirming it was
made by the court. May being by virtue of these proceedings the
owner of the property in question, found John F. Callan in
possession. Callan refused to go out, alleging that he was there
under an agreement made between himself and Waring, the purchaser
at the first sale, who had made default. He asserted also that May
had confirmed this agreement of Waring, and made it binding upon
himself by accepting the note which was due under it. May then
presented his petition to the court, setting forth the facts and
praying for process to put him in possession. Callan answered the
petition. The court found that May was entitled to possession, and
awarded him a writ of
habere facias possessionem. Callan
petitioned for an appeal to the Supreme Court. The appeal was
allowed on special allocatur, by Mr. Justice Wayne, and the record
brought up. May moved to dismiss on the ground that no appeal would
lie from such an order as that made in his favor by the circuit
court.
MR. CHIEF JUSTICE TANEY.
This appeal must be dismissed. The application of May for
process to obtain possession of the land was not a suit in which
any final decree could be passed so as to give to either party a
right to appeal. The proceedings in
Page 67 U. S. 543
the circuit court after its decree was affirmed in the case of
Statham, Smithson & Co. v. Callan, were nothing more
than proceedings required to carry into execution that decree. And
when May had become the purchaser, and the sale was ratified by the
court, and he had complied with the conditions of the sale, he was
entitled as a matter of course to the process of the court to put
him in possession. The order of the court directing process to
issue is not such a final order or decree in a case as the act of
1789 contemplates. It is nothing more than an order of process to
carry into execution a final decree already passed in a case in
which May was not a party.
If there was any agreement between May and Callan, after May
became the purchaser, whereby the land was leased to Callan for a
term which is not yet expired, the remedy of Callan was by a bill
in equity setting out the agreement, and praying that May might be
enjoined from disturbing him in his possession. This would have
been a new case in which a final decree might have been passed and
an appeal legally taken. But such an agreement can furnish no
ground for appeal from an order of the circuit court carrying into
execution the mandate of this Court in the case of
Statham,
Smithson & Co. v. Callan, in which May was not a party and
had no concern.
It seems to be supposed by counsel in the argument that the
order of the judge of this Court allowing the appeal was
conclusive, and that its validity was not new open to dispute. But
the allocatur of a judge was never so considered. Writs of error to
state courts cannot issue without the allocatur of a judge of this
Court. Yet there is hardly a term in which a case of that
description has not been dismissed upon the ground that the
transcript did not show a case in which a writ of error would lie.
A contrary doctrine would be exceedingly inconvenient if it could
be maintained, and would throw upon a single judge the
responsibility which properly belongs to the court. And it does not
by any means follow that the judge who authorizes the appeal has
made up his own mind that the party is legally entitled to it. He
may, and no doubt often does, entertain doubts upon the subject, or
may regard the point as new
Page 67 U. S. 544
and undecided, and upon which different opinions may be
entertained, and in such cases he grants the appeal in order to
bring the matter before the court and enable it to decide for
itself whether the case is or is not within their appellate
jurisdiction as regulated by the act of Congress. The allocatur of
a single judge certainly cannot enlarge the appellate powers of
this Court beyond the limits prescribed by law, and that law does
not authorize an appeal from an order directing execution to issue
to enforce a judgment.
This appeal must therefore be
Dismissed.
