United States v. Emholt

after stating the case, delivered the opinion of the court.

This court has no jurisdiction of the question certified. The office -and object of a certificate, of. division of opinion are to bring to this court for determination a qnestion of law upon which the opinions of two judges, competent to take part in. the judgment of the Circuit Court, are opposed to each, other. By the provisions óf sbct. 4 of the act of Sept. 24, 1789, c. 20, and of sect. 5 of‘the act of April 29, 1802, c. 31, re-enacted in the Revised Statutes, sect. 614, upon the hearing in the Circuit Court of an appeal from a judgment of the District Court, the district judge who rendered the decision appealed from, although he may, for the information of the Circuit Court, assign his reasons for that decision, is prohibited from voting or taking part in the judgment of the Circuit Court, and that judgment is to be entered according to the opinion of the judge who is not so disqualified. The provision of- sect. 2 of the act of March 2, 1867, c. 185, also incorporated in the same section .of the Revised Statutes, which, in order to prevent failure, or delay of justice, permits such á case, by consent of parties, to be heard and disposed of by the district judge when alone holding the Circuit Court, has no application when another judge is present. And the provisions of sect. 6 of the act of April 29, 1802, c. 31, and of sect. 1 of the act of June 1, 1.872, c. 255, embodied in sects. 650, 652, 693, 697, of the Revised Statutes, do not enlarge the authority of the district judge in this respect. It necessarily follows that the case cannot be brought to this court- upon a certificate of division of opinion between the judge, who is'qualified and the judge who is disqualified to take part in the judgment. United States v. Lancaster, 5 Wheat. 434; Nelson v. Carland, 1 How. 265.

The case cannot* be treated as before this court on the appeal from.the Circuit - Court,, without regard to the certificate of division, because it is on the common-law side of .that court. *416 If it is to be considered as a civil action, the proper mode of bringing it up is by writ of error, and not by appeal. Bevins v. Ramsey, 11 How. 185; Jones v. La Vallette, 5 Wall. 579. If, according to Clifton v. United States (4 How. 242, 250), it should be treated as in the nature of a criminal proceeding, it is hard to see how it could be brought to this court at all, except upon a certificate of division of opinion. Ex parte Gordon, 1 Black, 508.

Neither the consent of parties nor the allowance of the appeal in the court appealed from can enable this court to review the judgment of that court in any other form of proceeding than the daw prescribes. Kelsey v. Forsyth, 21 How. 85; Callan v. May, 2 Black, 541.

This court having no jurisdiction of the case, the appeal must be dismissed, and the case

Remanded to the Circuit Court.