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BUTLER V. GAGE, 138 U. S. 52 (1891)

U.S. Supreme Court

Butler v. Gage, 138 U.S. 52 (1891)

Butler v. Gage

No. 1342

Submitted January 5, 1891

Decided January 19, 1891

138 U.S. 52


It is to be presumed that when a writ of error is filed here from Colorado, signed (the Chief Justice being absent) by a judge who styles himself "Presiding judge of the Supreme Court" of that state, that he acts in that capacity in the absence of the chief justice, and in accordance with the provisions of the constitution of the state, and that the writ was properly allowed.

The petition for a writ of error is not part of the record on which this Court acts.

When a case is presented for the determination of the highest court of a state without a suggestion that a federal question is involved, and after decision a petition for a rehearing, containing no such suggestion, is presented and denied, a denial of a motion for further oral argument in which such a claim is for the first time set up does not necessarily involve the decision of a federal question.

This was an action brought in the name of William P. Linn and Lewis C. Rockwell against Hugh Butler and Charles W. Wright in the District Court in and for the County of Lake and State of Colorado upon a contract between Linn and Butler and Wright, subsequently assigned by Linn to Burrell, and by Burrell to Rockwell, as collateral security for money loaned by him to Linn. Linn subsequently died, and his executors were substituted.

The defenses raised no federal question. Upon trial had, a verdict was rendered in favor of the plaintiffs and their damages were assessed at the sum of $9,008.33, and a motion for new trial having been overruled, judgment was rendered thereon January 17, 1888, whereupon the case was taken by appeal to the Supreme Court of the Colorado. Appellants assigned forty-three errors, but these involved no federal question. September 13, 1889, the Supreme Court entered an order reciting that

"It appearing that this cause comes within the provisions of Rule 51 of this court, it is ordered by the court that this cause be, and is hereby, advanced for hearing, and that the same is hereby assigned to the Supreme Court Commission for consideration and report and for oral argument at such time as said commission shall

Page 138 U. S. 53


September 27, 1889, it was stipulated and agreed by and between the parties that the cause might be set down for oral argument on Wednesday, the 16th day of October, 1889. The cause was accordingly heard by the Supreme Court Commission, which arrived at a decision and opinion and reported the same to the Supreme Court. On the 24th of December, 1889, the Supreme Court entered the following order

"At this day, this cause coming on to be heard, as well upon the transcript of proceedings and judgment had in said district court in and for the County of Lake as also upon the matters assigned for error herein, and the same having been heretofore argued by counsel and submitted to the consideration and judgment of the court, and it appearing to the court that there is no error in the proceedings and judgment aforesaid of said district court, it is therefore considered and adjudged by the court that the judgment aforesaid of said district court be and the same is hereby affirmed and stand in full force and effect, and that this cause be remanded to said district court for such other and further proceedings according to law as shall be necessary to the final execution of the judgment of said district court in the cause notwithstanding the said appeal."

"It is further considered and adjudged by the court that said appellees do have and recover of and from said appellants their costs in this behalf expended, to be taxed, and that they have execution therefor. And let the opinion of the court filed herein be recorded."

And the opinion of the commission was then given upon the record, with these words attached: "Per curiam: For the reasons stated in the foregoing opinion, the judgment is affirmed."

On the 7th of January, 1890, appellants filed their petition for a rehearing in the cause, assigning various reasons but suggesting no federal question and taking no exception, so far as appears, to the fact that the case had been heard by the commission, which on the 28th of March, the supreme court, upon consideration thereof, denied.

May 16, appellants filed their motion in words and figures as follows:

"And now come the said appellants and move the

Page 138 U. S. 54


court to grant an oral argument on the merits of this cause and appeal in and before this court, and that in the meantime no mandate, remittitur, or process issue herein to affirm or enforce in any way the judgment of the said District Court of Lake County complained of and appealed from,

which motion was overruled May 23d. Thereupon appellants presented their petition for a writ of error from this Court, addressed to "Hon. J. C. Helm, Chief Justice of the Supreme Court of the State of Colorado." In this paper it was claimed, after a recital of various steps taken in the case, that the motion and request of appellants that the Supreme Court should grant an oral argument on the merits of the appeal and of the cause, and the refusal of the court to grant the same and to hear an oral argument,

"drew in question the constitutionality of the statutes of the State of Colorado entitled 'An act to regulate the practice in the Supreme Court; appointing commissioners therefor, fixing their salary, and defining their duties,' approved March 7, 1887, and a certain other act entitled 'An act providing for a Supreme Court Commission,' approved April 1, 1889, in that by the said statutes and the construction placed thereon and the practice adopted thereunder by said Supreme Court, litigants and suitors in said supreme court were deprived of their right to have their appeals and writs of error and other judicial controversies to be tried before, heard and decided by said supreme court, and because the same are repugnant to and inconsistent with and forbidden by the Fourteenth Amendment to the Constitution of the United States, which provides that"

" No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,"

"and that said decision in this cause in effect sustains the validity of said statutes so drawn in question."

The writ of error was allowed as follows:

"State of Colorado:"

"Desiring to give petitioners an opportunity to test in the

Page 138 U. S. 55


Supreme Court of the United States the question presented in the foregoing petition, it is ordered that a writ of error be allowed to said court, and that the same be made a supersedeas, the bond, in the penal sum of sixteen thousand dollars, herewith presented, being approved.

"In testimony whereof, witness my hand this 27th day of May, A.D. 1890, the chief justice being absent."


"Presiding Judge of the Supreme Court"

"of the State of Colorado"

The writ of error having issued and citation having been duly served, signed by and attested in the name of Judge Hayt, and the transcript having been filed in this Court, the defendants in error moved to dismiss or affirm.

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