ZELL v. JUDGES OF CIRCUIT COURT OF UNITED STATES FOR EASTERN DISTRICT OF VIRGINIA, 149 F. 86

GOFF, Circuit Judge. This case is fully stated in the petition, the exhibits filed therewith, and also in the answer tendered thereto. Should the writ of prohibition, as prayed for by petitioner, be issued by this court ? The act creating it provides that it shall have the powers specified in

section 716 of the Revised Statutes of the United States [U. S. Comp.

St. 1901, p. 580], which sets forth that the Supreme Court and the Circuit and District Courts of the United States shall “have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.” When this petition was filed there was no proceeding of an appellate character pending in this court, relating to the case referred to by it, concerning which any auxiliary writ was necessary for the exercise of the appellate jurisdiction of this court — a court created by a statute which makes it only a court of appeals, and gives it no original jurisdiction.

The petitioner complains, saying that, at the time he filed his petition, the Circuit Court for the Eastern District of Virginia had not signed and caused to be entered of record the decrees he alleged said court had announced that it would enter. The answer to the rule to show cause discloses that said Circuit Court had prepared the decrees so referred to, which embodied the views as announced by the judge of the court, and which would have been entered as part of the record of said cause but for the fact that said court was restrained from proceeding further therewith by the rule of this court to show cause.

When said decrees are entered, the petitioner will certainly have the right to appeal to this court from the decree granting the injunction, complained of by him, and it may be that then this court will find it necessary to use some auxiliary writ for the purpose of effectually exercising its appellate jurisdiction. We are of the opinion that every case of which this court can take jurisdiction, except petitions relating to bankruptcy proceedings, must be brought to it by either appeal or writ of error.

It has no power to issue the writ of prohibition as an original or independent proceeding, and it has no right to issue it as ancillary to a contemplated writ of error or appeal, though it is quite apparent that cases may present themselves, after a writ of error or appeal has been perfected, in which it would not only be proper but absolutely necessary that such writ should issue in aid of its jurisdiction.

While it is quite likely that the Circuit Court for the Eastern District of Virginia will enter the decrees it has so formulated, when it has the opportunity so to do, still it does not follow that it will do so, and it may be that it will so modify them that petitioner will not complain concerning them, or may so change them that petitioner may deem it best to go to an appellate court with other assignments of error regarding them. But, be that as it may, the only way this court can review them is by appeal after they have been passed upon by that court.

Eor the reasons mentioned, we do not find it to be our duty to now issue in this matter the extraordinary writ of prohibition. The rule to show cause will therefore be dismissed, and the writ asked for will be refused.