FREEBORN V. SMITH, 69 U. S. 160 (1864)

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U.S. Supreme Court

Freeborn v. Smith, 69 U.S. 2 Wall. 160 160 (1864)

Freeborn v. Smith

69 U.S. (2 Wall.) 160


1. When Congress has passed an act admitting a territory into the Union as a state but omitting to provide by such act for the disposal of cases pending in this Court on appeal or writ of error, it may constitutionally and properly pass a subsequent act making such provision for them.

2. This Court will not hear, on writ of error, matters which are properly the subject of applications for new trial.

Page 69 U. S. 161

This was a writ of error to the Supreme Court of Nevada Territory.

Smith had obtained a judgment against Freeborn and Shelden in the Supreme Court of Nevada; Nevada being at the time a territory only, not a state. To this judgment a writ of error went from this Court under the law organizing the territory, and the record of the case was filed here, December Term 1862. After the case was thus removed, the Territory of Nevada was admitted by act of Congress, March, 1864, into the Union as a state. The act admitting the territory contained, however, no provision for the disposal of cases then pending in this Court on writ of error or appeal from the territorial courts. Mr. Cope and Mr. Browning, in behalf of the defendants in error, accordingly moved to dismiss the writ in this and other cases similarly situated on the ground that, the territorial government having been extinguished by the formation of a state government in its stead, and the act of Congress which extinguished it having in no way saved the jurisdiction of the court as previously existing, nothing further could be done here. The territorial judiciary, it was urged, had fallen with the government of which it was part, and the jurisdiction of this Court had ceased with the termination of the act conferring it. Hunt v. Palao [Footnote 1] and Benner v. Porter [Footnote 2] were relied on to show that the court had no power over cases thus situated.

It being suggested by Mr. O'Connor and Mr. Carlisle on the other side, or as interested in other cases from Nevada similarly situated, that a bill was now before Congress supplying the omissions of the act of March, 1864, the hearing of the motion for dismissal was suspended till it was seen what Congress might do. Congress finally acted, and on the 27th of February, 1865, passed "An Act providing for a District Court of the United States for the District of Nevada," &c.

Page 69 U. S. 162

The eighth section of this enacts:

"That all cases of appeal or writ of error heretofore prosecuted and now pending in the Supreme Court of the United States upon any record from the Supreme Court of the Territory of Nevada may be heard and determined by the Supreme Court of the United States, and the mandate of execution or of further proceedings shall be directed by the Supreme Court of the United States to the District Court of the United States for the District of Nevada or to the Supreme Court of the State of Nevada, as the nature of said appeal or writ of error may require, and each of these courts shall be the successor of the Supreme Court of Nevada Territory as to all such cases, with full power to hear and determine the same, and to award mesne or final process thereon."

The motion to dismiss the writ for want of jurisdiction was now renewed.

Assuming jurisdiction to exist, this case of Smith v. Freeborn was argued also on a question of merits. The judgment mentioned at the beginning of the case, which Smith had obtained against Freeborn and Shelden, he had obtained against them as secret surviving partners of a certain Shaw. One ground of the writ of error was that no evidence whatever had been offered of a partnership with Shaw between Freeborn and Shelden (a matter which was more or less patent on the record), and that judgment having gone against both (two jointly) and error as to one, the judgment would have to be reversed. A motion had been made and refused below for a new trial.

There was also another question of merits. To rebut the evidence of partnership, the defendants offered some letters between themselves and Shaw, and between themselves and one Eaton, an agent of theirs; which letters, though containing, as was urged, some admissions against their own interest, the court below refused to let go in evidence to disprove a partnership.

Its action on these two points was one matter argued, but the great question was that of jurisdiction, a matter affecting other cases as well as this.

Page 69 U. S. 173

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