Burrows v. The Marshal

ON motion to dismiss an appeal from the Circuit Court for the District of North Carolina.

The 22d section of the Judiciary Act of 1789, after enacting that certain final decrees in District Courts may be re-examined, and reversed or affirmed, in Circuit Courts, 'upon writ of error,' enacts further:

'And upon like process may final judgments and decrees in civil actions and suits in equity in a Circuit Court, brought there by original process, &c., be re-examined, reversed or affirmed, in the Supreme Court, &c.'

An amendment to this act, passed in 1803, enacts:

'That from all final judgments or decrees rendered or to be rendered in any Circuit Court in any cases of equity, admiralty, and maritime jurisdiction, and of prize or no prize, an appeal. . . shall be allowed to the Supreme Court of the United States.'

With these acts in force, an execution duly issued from the Circuit Court for the District of North Carolina on a judgment against one Taylor, and under it real estate owned by him was sold by the marshal, and the money paid into the marshal's office. Notwithstanding this the marshal advertised the same land for sale under other executions. Hereupon one Burrows, alleging that he had purchased and paid for the land, and had tendered the marshal a proper draft of a deed to him, obtained a rule on the marshal to show cause why he should not make such a deed, and why another sale under the other executions should not be stayed.

The marshal set up by way of answer that Burrows was not the purchaser, but that one Meacham was; that the and had sold at an enormous sacrifice, the result of a fraudulent combination between Burrows, Meacham, and Taylor, to prevent competition in the bidding.

The court below having heard the case on its merits dismissed Burrows's petition, and ordered him to pay all the costs. From this, its action, he brought the case to this court by an appeal.

Mr. S. F. Phillips, Solicitor-General, in support by the motion, argued, that if the discharge of the rule below was in any true sense a 'final judgment or decree,' and such a judgment or decree as was within the supervisory jurisdiction of this court at all, it could only be so on writ of error. The proceeding in which Burrows made his motion below was at law, and the motion was a motion at law. Under the act of 1803, indeed, appeals were allowed in a special class of cases, but this case did not fall within that class.

Messrs. W. A. Graham and H. W. Guion, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.