Scott v. Platt , 171 Or. 379 ( 1943 )

Application for stay of execution denied May 25, 1943 ON APPLICATION FOR STAY OF EXECUTION (137 P.2d 975) The appellant has filed an application for a stay of the execution and enforcement of the judgment herein and the recall of the mandate, to enable him to apply for and obtain a writ of certiorari from the Supreme Court. Such application is authorized by Title 28, § 350, U.S.C.A., which provides in part:

"In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to apply for and obtain a writ of certiorari from the Supreme Court."

Section 344 (b), ibid., authorizes the Supreme Court to have certified to it, by certiorari, for review and determination a cause wherein a final judgment or decree has been rendered or passed by the highest court of a state, and includes cases "where any title, right, privilege, or immunity is specially set up or claimed by either party under the Constitution".

In the application now under consideration the petitioner avers that he seeks a review of our decision "and especially in relation to the 5th and 14th amendments to the Constitution to the property rights of the appellant involved in this action."

The application is addressed wholly to our discretion.Magnum Import Company v. Houbigant, Inc., 262 U.S. 159,43 S. Ct. 531, 67 L. Ed. 922. Mr. Chief Justice Taft, referring in that case to a similar application to the United States Circuit Court of Appeals, said:

"That court is in a position to judge, first, whether the case is one likely, under our practice, to be taken up by us on certiorari; and, second, whether the balance of convenience requires a suspension of its decree and a withholding of its mandate."

The court added:

"These remarks, of course, apply also to applications for certiorari to review judgments and decrees of the highest courts of states."

The whole subject is reviewed at length in Williams v.Keyes, 135 Fla. 769, 810, 186 So. 250, 266, where it is said:

"The necessary prerequisite for such a review is exemplification of a federal question that was affirmatively presented, that its decision was necessary to the determination of the cause, that it was actually decided or that the judgment as rendered could not have been so without deciding it. Adams v. Russell, 229 U.S. 353, 33 S. Ct. 846, 57 L. Ed. 1224; Palmer v. State of Ohio, 248 U.S. 32, 39 S. Ct. 16, 63 L. Ed. 108; Chicago, R.I. P. Co. v. Maucher, 248 U.S. 359, 39 S. Ct. 108, 63 L. Ed. 294."

None of these things are found in this case. It is an action to recover the principal sum and interest of bonds issued by the appellant and another. The sole defense was that certain provisions of the bonds and of a collateral indenture, executed to secure their payment, were a bar to the maintenance of the action. We construed the provisions relied on by the appellant adversely to him and held that the action would lie, in an opinion rendered April 6, 1943. Thereafter the appellant filed a petition for rehearing, which was denied without opinion on May 11, 1943. From the filing of the complaint to the denial of the petition for rehearing, there has not been anywhere in the record a suggestion of a federal question, and it is difficult to see how there could have been, for the case is one of purely local state law, involving nothing but the construction of a contract, entered into in this state and governed by its laws. The Supreme Court is not authorized to interfere with a state court's decision on a question of that kind. American Railway Express Company v. Kentucky,273 U.S. 269, 47 S. Ct. 353, 71 L. Ed. 639.

The suggestion of a federal question in the present application, even though it were otherwise sufficient, is too vague and indefinite to meet the requirements of the statute, since it does not appear "from the averments of fact upon which the claim must depend that the question is one real and substantial". Consolidated Turnpike Company v. Norfolk OceanView Railway Company, 228 U.S. 596, 33 S. Ct. 605, 57 L. Ed. 982. And, indeed, there are no averments of fact at all. In any event, the claim comes too late, for we have made our final disposition of the case and have no jurisdiction to pass upon the supposed federal question, even though we were so inclined. Even when the federal question is first presented by a petition for a rehearing, the Supreme Court of the United States will not take jurisdiction "unless that question was considered, and passed on adversely by the court". Montana v. Rice, 204 U.S. 291, 27 S. Ct. 281, 51 L. Ed. 490, and other cases cited in U.S.C.A., ibid., p. 288, Note 227; or "the grounds of the decision supply a new and unexpected basis for a claim by the defeated party of the denial of a federal right".Great Northern Railway Co. v. Sunburst Oil Refining Co.,287 U.S. 358, 367, 53 S. Ct. 145, 77 L. Ed. 360, 85 A.L.R. 254.

It thus appears that it is highly improbable, if not, as we should suppose, in law impossible, that the Supreme Court will look with favor on the appellant's petition for certiorari. As has been shown, the court does not grant a stay of execution on an application of this kind as a matter of course. The considerations which should guide our discretion have been stated for us by the highest authority, and we should be disposed to apply them liberally in favor of the application wherever there is any reasonable ground for believing that the Supreme Court might take jurisdiction of the cause. None exists here, and the application is therefore denied.