Edward Douglass White

“ If the first course be pursued, it is obvious not only that delay must follow, but that when the merits are heard we will be virtually exerting the powers of a court of first instance, since we will be called upon, not to review the action of a court below, organized conformably to law, but to decide, virtually in the exercise of original jurisdiction, questions which the law contemplated should be previously passed upon by an inferior court lawfully constituted. ”

“ This contention is devoid of merit, since it must rest upon the conception that a trial judge, despite the express prohibition of the statute, may endow himself with power to sit in the court of appeals, and review a decree by him rendered, if only from a mistaken sense of duty he has adjudicated the merits of a case without considering them. ”

“ As to the first ground, however much we may appreciate the sense of public duty which led the trial court virtually to decline to examine the merits of the case, and enter the pro forma decree so that no time might be lost in taking the case to the circuit court of appeals, we do not wish to be understood as giving our sanction to such procedur. ”