This Court has no jurisdiction to review in error or on appeal,
in advance of the final judgment in the cause on the merits, an
order of a Circuit Court of the United States remanding the cause
to the state court from which it had been removed into the circuit
court.
McLish v. Roff, ante, 141 U. S. 661,
affirmed and followed.
The Court stated the case as follows:
This is a motion to dismiss the writ of error herein for want of
jurisdiction, with which is united a motion to affirm the judgment
of the court below. The case is this: on the 1st of November, 1890,
the defendant in error, John Roberts, brought an action in a state
court of Minnesota against the Chicago, St. Paul, Minneapolis and
Omaha Railway Company to recover damages for personal injuries
alleged to have been sustained in consequence of the negligence of
the company while he was in its employ as a fireman on one of its
locomotives running between the City of St. Paul and the Village of
St. James in that state. The damages were laid at $30,000.
The railway company very soon thereafter (the exact date not
appearing from the record) filed with the clerk of the state court,
without notice to the court at all, its petition and bond for the
removal of the cause into the United States Circuit Court for the
District of Minnesota on the ground of diverse citizenship of the
parties, and on the 3d of November of that year there was filed in
the circuit court a certified transcript of the record from the
state court, under the hand and seal of the clerk of the state
court. On the same day, the railway company filed an answer in the
circuit court to the merits of the action. Up to this time, there
does not appear to have
Page 141 U. S. 691
been any order entered in the state court touching the removal,
nor even that the state court was aware of the petition for removal
having been filed, nor does it appear that the circuit court's
attention had as yet been called to the case.
On the 13th of January, 1891, the plaintiff entered a special
appearance in the circuit court for the purpose of objecting to the
jurisdiction of that court, and moved that the cause be remanded to
the state court for the following reasons: (1) The action was not,
and never had been, in the circuit court; (2) the action was never
removed from the state court; (3) a judgment had been duly rendered
and entered in the state court in the cause, in favor of the
plaintiff and against the defendant, and within the past fifteen
days, and since the filing of a transcript of the record in the
circuit court, the defendant appeared in the action in the state
court, and did therein on the 3d of January, 1891, move the state
court to have the aforesaid judgment against it vacated and set
aside, which motion was then pending, upon its merits, in the state
court, and argument upon it had been continued, by consent of both
parties, until January 17, 1891; and, (4) by making said motion and
said appearance in the state court, the defendant submitted itself
to the jurisdiction of the state court in the action, and thereby
waived any and all right which it possessed to a removal of the
cause to the circuit court. Argument was had on this motion, and on
the 31st of March, 1891, the circuit court entered an order
sustaining the motion and remanding the cause to the state court.
45 F. 433. To reverse that order, this writ of error is
prosecuted.
Page 141 U. S. 693
MR. JUSTICE LAMAR delivered the opinion of the Court.
The ground upon which the motion to dismiss is based is that the
writ of error is not only not authorized, but is expressly denied
by the second section of the Act of Congress approved March 3,
1887, 24 Stat. 552, c. 373, as corrected by the Act of August 13,
1888, 25 Stat. 433, c. 866, the last paragraph of which is as
follows:
"Whenever any cause shall be removed from any state court into
any circuit court of the United States, and
Page 141 U. S. 694
the circuit court shall decide that the cause was improperly
removed and order the same to be remanded to the state court from
whence it came, such remand shall be immediately carried into
execution, and no appeal or writ of error from the decision of the
circuit court so remanding such cause shall be allowed."
The question presented for our decision is has this Court, upon
this record, the appellate jurisdiction to review the order of the
circuit court remanding the cause to the state court?
The case of
Morey v. Lockhart, 123 U. S.
56,
123 U. S. 58,
was an appeal from an order of the circuit court remanding a suit
which was begun in, and had been removed from, the state court to
the circuit court, after the Act of March 3, 1887, 24 Stat. 552, c.
373, went into effect. A motion to dismiss the appeal was filed,
and was granted by this Court upon the ground that "the order of
the circuit court remanding the cause to the state court is not a
final judgment," citing
Railroad Company v.
Wiswall, 23 Wall. 507. The Court, in its opinion
delivered by Mr. Chief Justice Waite, after quoting § 2 of the
act of 1887, said:
"It is contended, however, that the prohibition against appeals
and writs of error in the act of 1887 applies only to removals on
account of prejudice or local influence; but that cannot be so. The
section of the statute in which the provision occurs has relation
to removals generally, those for prejudice or local influence as
well as those for other causes, and the prohibition has no words of
limitation. It is in effect that no appeal or writ of error shall
be allowed from an order to remand in 'any cause removed from any
state court into any circuit court of the United States.'"
In
Richmond & Danville Railroad v. Thouron,
134 U. S. 45, which
was an appeal from the order of a circuit court remanding the cause
to a state court, it was held that an order remanding a cause from
a circuit court of the United States to the state court from which
it was removed is not a final judgment or decree, and that this
Court has no jurisdiction to review it, and the motion to dismiss
the appeal for want of jurisdiction was granted. In the opinion,
delivered
Page 141 U. S. 695
by MR. CHIEF JUSTICE FULLER, the Court said:
"Before the Act of 1875, c. 137, 18 Stat. 470, we held that an
order by the circuit court remanding a cause was not such a final
judgment or decree in a civil action as to give us jurisdiction for
its review by writ of error or appeal. The appropriate remedy in
such a case was then by mandamus, to compel the circuit court to
hear and decide,"
citing authorities.
"The act of 1875 made such order reviewable, without regard to
the pecuniary value of the matter in dispute, but by the Act of
March 3, 1887, 24 Stat. 552, 555, c. 373, as corrected by the Act
of August 13, 1888, 25 Stat. 433, c. 866, the provision to that
effect was repealed, and it was also provided that no appeal or
writ of error should be allowed from the decision of the circuit
court remanding a cause."
134 U.S. 46. And again:
"The words 'a final judgment or decree' in this act are
manifestly used in the same sense as in the prior statutes which
have received interpretations, and these orders to remand were not
final judgments or decrees, whatever the ground upon which the
circuit court proceeded,"
citing
Graves v. Corbin, 132 U.
S. 571.
It is contended by counsel for plaintiff in error that this
appeal lies under §§ 4 and 5 of the Act of Congress
approved March 3, 1891, 26 Stat. 826, c. 517. The fourth section
and that part of the fifth relied on read as follows:
"SEC. 4. That no appeal, whether by writ of error or otherwise,
shall hereafter be taken or allowed from any district court to the
existing circuit courts, and no appellate jurisdiction shall
hereafter be exercised or allowed by said existing circuit courts,
but all appeals, by writ of error otherwise, [
sic] from
said district courts shall only be subject to review in the Supreme
Court of the United States or in the circuit court of appeals
hereby established, as is hereinafter provided, and the review, by
appeal, by writ of error, or otherwise, from the existing circuit
courts shall be had only in the Supreme Court of the United States
or in the circuit courts of appeals hereby established, according
to the provisions of this act regulating the same."
"SEC. 5. That appeals or writs of error may be taken from
Page 141 U. S. 696
the district courts or from the existing circuit courts direct
to the supreme court in the following cases:"
"In any case in which the jurisdiction of the court is in
issue."
It is urged that when the copy of the record in the suit in the
state court was entered in the circuit court, a case was pending
therein, and when the objections to the jurisdiction were
presented, the jurisdiction of the court was put in issue. This
provision of the act of 1891 has been passed upon by this Court in
the case of
McLish v. Roff, just decided,
ante,
141 U. S. 661. In
that case, the motion to dismiss the writ of error was granted upon
the ground that the provision authorizing appeals or writs of error
to be taken direct to this Court "in any case in which the
jurisdiction of the court is in issue" does not make an appeal or
writ of error allowable before the cause has proceeded to final
judgment. It is therefore our opinion that the revisory power of
this Court cannot be invoked on this record, although, by the
motion to remand, the jurisdiction of the circuit court was put in
issue.
The writ of error is
Dismissed.
