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United States Supreme Court


Argued: Decided: April 29, 1912

Messrs. Henry B. F. Macfarland, Charles Cowles Tucker, and J. Miller Kenyon for Home for Incurables. [224 U.S. 486, 487]   Messrs. John A. Kratz, Jr., and Joseph W. Cox for Vermillion.

[224 U.S. 486, 489]  

Mr. Justice Holmes delivered the opinion of the court:

These are applications for the allowance of an appeal and writ of error, respectively. The cases come before the court under the same circumstances as the application for a writ of error, just decided. American Secur. & T. Co. v. District of Columbia [ 224 U.S. 491 , 56 L. ed . --, 32 Sup. Ct. Rep. 553.]

The first named is a bill in equity that was pending in the court of appeals on January 1, 1912, and decided on March 4, 1912. The matter in dispute in both, exclusive of costs, exceeds the sum of $5,000. The law before the enactment of the Judicial Code of March 3, 1911, chap. 231, 36 Stat. at L. 1087,1 allowed a writ of error or appeal in such cases (act of February 9, 1893, chap. 74, 8, 27 Stat. at L. 436, U. S. Comp. Stat, 1901, p. 573), and the applicants contend that the appeal and writ of error are rights saved by 299 of the Code. That section is as follows: 'The repeal of existing laws, or the amendments thereof, embraced in this act, shall not affect any act done, or any right accruing or accrued, or any suit or proceeding, including those pending on writ of error, appeal, certificate, or writ of certiorari, in any appellate court referred to or included within the provisions of this act, pending at the time of the taking effect of this act, but all such suits and proceedings, and suits and proceedings for causes arising or acts done prior to such date, may be commenced and prosecuted within [224 U.S. 486, 490]   the same time, and with the same effect, as if said repeal or amendments had not been made.' This act took effect when this suit was pending in the court of appeals, on January 1, 1912

The purpose of the act in the matter of appeals from the court of appeals of the District was to make a substantial change and to do away with them except in classes of cases of which this is not one. There seems to be little if any more reason for preserving a further appeal in cases then before the court of appeals than there is in those in which no writ had been sued out, but the cause of action had accrued before January 1, 1912, which is nothing at all. It must appear clearly, therefore, that this case is saved, or it will fall under the general rule. We find no clear expression of such intent. The general provision that the repeal shall not affect any right or suit is ambiguous, and is qualified and explained by the words, 'including those pending on appeal,' etc., which suggest that but for them appeals already taken would have fallen. Baltimore & P. R. Co. v. Grant, 98 U.S. 398 , 25 L. ed. 231. If express words were thought necessary to save pending appeals, a fortiori such words were needed to save appeals not yet taken, and no such words were used. The first part of the section, declaring what shall not happen, is elucidated by the antithetical statement, in the last part, of what shall take place. We gather from that that all suits upon causes of action that arose before January 1 stand alike. We cannot suppose that a suit not yet begun can be taken to this court on the ground that a sum of more than $5, 000 is involved, and we are of opinion that the applicant makes no better case. We agree with the court of appeals that the act saves jurisdiction when an appeal has been taken, but does not save an appeal for all suits in causes of action accrued before this year.

Leave to appeal and writ of error denied.


[ Footnote 1 ] U. S. Comp. St. Supp. 1911, p. 128.

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