Oliver Wendell Holmes, Jr.

“ The parties could have agreed in writing upon a judge, and they did agree in writing at a later stage that Judge McCabe should decide the case without waiting for the action of the assessors whom the law provides to assist upon matters of fact. This objection, like the preceding, seems not to have been even suggested to the supreme court of the Philippines. To listen to it now would be not to prevent, but to accomplish, an injustice not to be tolerated except under the most peremptory requirement of law. ”

“ The next point argued, again not assigned as error, is that it seems from the opinion of the judge of first instance that the trial was had upon the evidence that had been offered before Judge Norris. If we are to assume the fact, it is a most extraordinary suggestion that, even though the parties seem to have assented to the course pursued, due process of law forbids a hearing upon a transcript of evidence formerly heard in court. ”

“ As to this it is enough to say that no such error was assigned as a ground for appeal, and the objection comes too late. At the previous stage the right of the plaintiff to her proportion of the conjugal property, to alimony pending suit, and to other allowances claimed, was said to be the basis of our jurisdiction. 201 U.S. 318. De Villanueva v. Villanueva, 239 U.S. 293, 294, 60 L. ed. , 36 Sup. Ct. Rep. 109. The court of first instance had jurisdiction of the subject-matter, and the separation or union of the two causes was merely a question of procedure and convenience. ”