Eisler v. United States/Opinion of the Court

Petitioner's flight from the country after the grant of his petition for writ of certiorari, 335 U.S. 857, 69 S.Ct. 130, and after the submission of his cause on the merits necessitates a decision as to the disposition now to be made of this case. Since the petitioner by his own volition may have rendered moot any judgment on the merits, we must, as a matter of our own practice, decide whether the submission should be set aside the the writ of certiorari dismissed or whether we should postpone review indefinitely by ordering the case removed from the docket, pending the return of the fugitive.

Our practice, however, has been to order such cases to be removed from the docket. Smith v. United States, 94 U.S. 97, 24 L.Ed. 32; Bonahan v. State of Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854. We adhere to those precedents. Accordingly after this term the cause will be left off the docket until a direction to the contrary shall issue.

While Mr. Justice BURTON has not participated in the consideration of the merits of this case, he has participated in this procedural action based upon the memorandum filed by the United States of America calling the attention of the Court to the petitioner's flight from justice.

Mr. Justice FRANKFURTER, with whom THE CHIEF JUSTICE joins, dissenting.