Guaranty Trust Co. of New York v. Metropolitan St. Ry. Co. , 171 F. 1014 ( 1909 )

LACOMBE, Circuit Judge.

Examination of the assignments of error shows that it is sought to present upon this appeal multitudinous questions — largely questions of chancery practice — involving all the intricate details of the situation presented on the trial of this suit. The relationships of the various interests are involved and the necessities of operation by the court have still further complicated them, with the result that provision has had to be made in the decree, for minute details which are usually omitted. It was one object of the Appeal Act of March 3, 1891 (chapter 517, 26 Stat. 826 [U. S. Comp. St. 1901, p. 488]), to relieve the Supreme Court of the burden of considering such questions — at least until after the local Court of Appeals should have considered them, whereupon, in the event of apparent error being disclosed they might be brought up on certiorari. It would seem that the references in three or four of the assignments of error to the provisions of the fifth amendment to the Constitution of the United States are not sufficient to. warrant the Circuit Court in sending the course upon appeal direct to the Supreme Court under the fourth "Subdivision of section 5 of the appeal act. Certainly the construction or application of the Constitution was not the controlling or dominant feature of the case. It is thought therefore that the application for allowance of such appeal should be refused. Carey v. Houston & Texas Central Ry. Co., 150 U. S. 170, 14 Sup. Ct. 63, 37 L. Ed. 1041; In re Lennon, 150 U. S. 393, 14 Sup. Ct. 123, 37 L. Ed. 1120; Ansbro v. U. S., 159 U. S. 695, 16 Sup. Ct. 187, 40 L. Ed. 310; Cornell v. Green, 163 U. S. 75, 16 Sup. Ct. 969, 41 L. Ed. 76; Empire, etc., Co. v. Hanley, 205 U. S. 225, 27 Sup. Ct. 476; 51 L. Ed. 779.

. If this court is in error as to construction and application of the authorities above cited, the complainant will be in no way prejudiced thereby, since application for allowance of the appeal can be made to one of the justices of the Supreme Court. Refusal does not put appellant to the trouble of moving for a mandamus.