Morrison Waite

“ As it is, we find nothing in the record to show that the suit could not have been taken to the court of appeals if the necessary application had been made, and consequently we have no right to proceed. It matters not that the judgment of the superior court is in accordance with what was decided by the court of appeals on the former appeal. The judgment is still the judgment of the superior court, which is not the highest court of the state, and it might have been taken to the court of appeals for review if the grant of an appeal had been applied for and secured. ”

“ Such a certificate enters into and forms part of the allowance of an appeal in a case like this, and an application for the allowance necessarily includes an application for the certificate, unless it has been obtained before, because the certificate is one of the ingredients of an allowance. The want of a certificate is good reason for refusing to allow an appeal, but until it has been asked for and refused its absence furnishes no ground for a writ of error from this court. ”