No appeal lies to this Court from an order of a circuit judge of
the United States, sitting as a judge and not as a court,
discharging a prisoner brought before him on a writ of habeas
corpus
An order of the Circuit Judge of the Fourth Circuit, made at
Baltimore, Maryland, that a prisoner brought before him there from
Richmond, Virginia, on a writ of habeas corpus shall be discharged
is a proceeding before him as a judge, and not as sitting as a
court, and it is not converted
Page 121 U. S. 88
into a proceeding of the latter kind by a further order that the
papers in the case be filed in the Circuit Court of the United
states at Richmond, and the order of discharge be recorded in that
court.
Rule 34, 117 U.S. 708, explained.
This was an appeal from an order discharging a prisoner on a
writ of habeas corpus. The case is stated in the opinion of the
Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This was a proceeding before the Circuit Judge for the Fourth
Circuit at his chambers in Baltimore, Maryland, for the discharge
of Richard L. Fitzgerald from the custody of H. A. Carper, jailer
of Pulaski County, Virginia, under a mittimus from John H. Cecil, a
justice of the peace of that county. The petition was presented to
the judge in Baltimore, who directed the clerk of the Circuit Court
for the Eastern District of Virginia to issue a writ of habeas
corpus and make it returnable before him at the United States
courthouse in Baltimore. The writ was accordingly issued under the
seal of the court in the usual form of circuit court writs, and
made returnable
"before the Honorable Hugh L. Bond, judge of our Circuit Court
of the United States for the Eastern District of Virginia, sitting
at the United States courthouse in Baltimore, Maryland."
The record shows that the jailer made his return to the writ,
and that the petitioner filed a demurrer thereto, upon
consideration of which an order of discharge was entered. At the
foot of this order was the following:
"And it is ordered that the papers in this case be filed in the
Circuit Court of the United States at Richmond, Virginia, and that
this order be recorded in said court."
"HUGH L. BOND,
Circuit Judge"
Page 121 U. S. 89
From this order the jailer was allowed an appeal to this Court
by the circuit judge, and the case was docketed here as "an appeal
from the Circuit Court of the United States for the Eastern
District of Virginia." The form of the docket entry here does not
change the character of the proceeding from which the appeal was
taken, and that was clearly under § 752 of the Revised Statutes,
before the judge sitting as a judge, and not as a court. The Act of
March 3, 1885, c. 353, 23 Stat. 437, gives an appeal to this Court
in habeas corpus cases only from the final decision of a circuit
court. The order of the judge that the papers be filed, and his
order recorded in the circuit court, does not make his decision as
judge a decision of the court. Neither does our Rule 34, 117 U.S.
708, adopted at the last term, have that effect. The purpose of
that rule was to regulate proceedings on appeals under § 763 from
the decision of a judge to the circuit court of the district, as
well as under § 764, as amended by the Act of March 3, 1885, from a
circuit court to this Court. Power to make such a regulation was
given to this Court by § 765 of the Revised Statutes.
Appeal dismissed.