Fashnacht v. Frank/Opinion of the Court

by Morrison Waite

United States Supreme Court

90 U.S. 416

Fashnacht  v.  Frank

Previous to the time when the motion for a new trial was made and overruled, no question had been presented in the cause that could under any circumstances give this court jurisdiction upon a writ of error. On the 23d of January a petition was filed by the defendant for the removal of the cause to the Circuit Court of the United States. This petition was at once very properly overruled, for the reason that a final judgment had already been rendered. No exception was taken to this ruling. So far as appears the defendant was satisfied, as he should have been, that he could not have relief in that form against the judgment which had been rendered. On the 31st of January an appeal from the judgment was taken to the Supreme Court of the State. This was clearly the appropriate remedy for the correction of the errors of the District Court, if there were any. The action of the District Court in refusing the removal does not appear to have been presented to the Supreme Court upon this appeal. It could not properly have been presented, because the appeal was from the judgment alone, and this action was subsequent to the judgment and independent of it. We act only upon the judgment of the Supreme Court. Only such questions as either have been or ought to have been passed upon by that court in the regular course of its proceedings can be considered by us upon error.

WRIT OF ERROR DISMISSED.

Notes