United States Circuit Courts of Appeals Reports: With Key-number Annotations ...

An appeal from a decree of a circuit court in a suit by contractors, against the United States, to recover for materials furnished for the construction of a levee, must go in the first instance to the circuit court of appeals, and not to the supreme court. Ogden v. U. S., 148 U. S. 390, 13 Sup. Ct. 602.

The circuit court of appeals has jurisdiction to review on writ of error the judgment of a circuit court in an action of ejectment by a landowner against the agent of the United States in charge of the St. Mary's ship canal, the piers of which are built upon the submerged land lying in front of plaintiff's lot; such suit involving questions as to the government's ownership and control of such submerged lands on the borders of the St. Mary's river. Scranton v. Wheeler (6th Circuit) 6 C. C. A. 585, 57 Fed. 803.

The circuit courts of appeal have appellate jurisdiction in all cases in which original jurisdiction is conferred by reason of United States being plaintiff's or petitioners, including the case of a bill by the United States to cancel a patent for an invention. U. S. v. American Bell Tel. Co., 159 U. S. 548, 16 Sup. Ct. 69. 18 The words "unless otherwise provided by law" do not refer to prior laws, but were inserted out of abundant caution to guard against implied repeals. Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. 517; Hubbard v. Soby, 146 U. S. 56, 13 Sup. Ct. 13; American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 13 Sup. Ct. 758; Louisville Public Warehouse Co. v. Surveyor (6th Circuit) 1 C. C. A. 371, 49 Fed. 561. A contrary opinion was intimated in Re Coe (1st Circuit) 1 C. C. A. 326, 49 Fed. 481.

The circuit courts of appeals have jurisdiction to review, on error, a judgment of the circuit court in an action against the United States, brought under the Tucker act of March 3, 1887 (24 Stat. 505). Cases of this description are not "otherwise provided by law," within the meaning of this section. U. S. v. Coudert (2d Circuit) 19 C. C. A. 543, 73 Fed. 505.

17 The supreme court may entertain jurisdiction to pass upon the jurisdiction of the circuit court of appeals when involving the question of the finality of its judgment. Mining Co. v. Ripley, 151 U. S. 79, 14 Sup. Ct. 236.

18 The question whether the jurisdiction is dependent entirely upon diverse citizenship, so as to render the judgment of the circuit court of appeals "final," is to be determined by the showing made by the summons and declaration. Subsequent proceedings are not to be regarded. Borgmeyer v. Idler, 159 U. S. 408, 16 Sup. Ct. 34.

Jurisdiction over an intervening petition to recover damages for personal injuries against railroad receivers is referable to the jurisdiction in the suit in which they were appointed; and, where that depends on diverse citizenship alone, a judgment by the circuit court of appeals is not reviewable by the supreme court. Rouse v. Letcher, 156 U. S. 47, 15 Sup. Ct. 266; Rouse v. Hornsby, 161 U. S. 588, 16 Sup. Ct. 610.

A decree of the circuit court of appeals is "final" in a suit of which the circuit court had jurisdiction only because it was ancillary or supplemental to a previous suit, in which the jurisdiction was based entirely upon diverse citizenship. Carey v. Railroad Co., 161 U. S. 115, 16 Sup. Ct. 537.

The court's jurisdiction to pass upon conflicting claims to property in possession of its receiver appointed in a case of diverse citizenship is also to be regarded as based on diverse citizenship, so as to make the decree "final." Carey v. Railroad Co., 161 U. S. 115, 16 Sup. Ct. 537. See, also, Gregory v. Van Ee, 160 U. S. 643, 16 Sup. Ct. 431.

In an action by a citizen of one state against a federal corporation, alleged to be a citizen of another state, the judgment of the circuit court of appeals is not final, though jurisdiction is invoked on the sole ground of diverse citizenship. Railroad Co. v. Harris, 158 U. S. 326, 15 Sup. Ct. 843.

19 This refers only to suits at law and in equity for infringement, and to suits in equity for interference and to obtain patents. It does not apply to suits brought by the United States to cancel patents; for in such suits the circuit courts of appeal have jurisdiction on the additional ground that the United States are a party, and in suits coming within their jurisdiction on that ground their decisions are not made final. Therefore, in such cases, an appeal lies from the circuit courts of appeal to the supreme court. U. S. v. American Bell Tel. Co., 159 U. S. 548, 16 Sup. Ct. 69.

final as to the claimants in the auxiliary bill, and that it had jurisdiction thereof.

In Potter v. Beal (1st Circuit) 5 U. S. App. 49, 2 C. C. A. 60, and 50 Fed. 860, a national bank president, against whom an indictment was pending for violating the banking laws, brought a bill against the receiver of the bank to obtain possession of a trunk in its vaults, alleging that it contained his private papers. To this proceeding the United States district attorney was made a party defendant on his own petition, for the purpose of claiming the papers, in order that they might be laid before the grand jury. After a hearing, the court entered a decree purporting to be "in aid of the preliminary hearing." appointing a special master to make a private examination of the trunk, with directions to turn over to complainant any papers belonging to him, and to the receiver such papers as belonged to the bank and were not material to the prosecution against the president, and to reserve for further consideration such as concerned bank transactions and were material to the prosecution. All parties were enjoined from interfering with the trunk or its contents until the return of the master's report, or until the order was vacated. The president of the bank appealed from this order, and the first question raised was whether the appeal should be regarded as from an interlocutory order granting an injunction, under section 7, or whether it should be considered an appeal from a final decree. The court held that, as the order seemed to dispose of a part or the whole of the matter in controversy, so much of it as directed a distribution must be deemed a final decree.

In general it is to be said that the question whether a judgment or decree is a "final decision," so as to be reviewable on error or appeal in the circuit courts of appeal is to be determined by the same rules and tests which are applied in ascertaining what are such final judgments and decrees as may be reviewed by the supreme court on error or appeal. The general subject of what are final appealable judgments and decrees is treated at length in a note to Trust Co. v. Madden (4th Circuit) 17 C. C. A. 238.

13 The phrase "district judge of the district," in Act Sept. 13, 1888, § 13, allowing an appeal to the district judge of the district on a conviction before a commissioner of a Chinese person of unlawfully entering the United States, is an equivalent of "the district court," and a writ of error will lie from the circuit court of appeals to review his judgment on such appeal. U. S. v. Gee Lee (9th Circuit) 1 C. C. A. 516, 50 Fed. 271.

14 A decree of the circuit court on an appeal in admiralty taken prior to July 1, 1891, is reviewable in the circuit court of appeals. The Mattano (4th Circuit) 3 C. C. A. 325, 52 Fed. 876; The Alejandro (9th Circuit) 6 C. C. A. 54, 56 Fed. 621.

15 By this and the preceding section, taken in connection with the repealing provisions of section 14, the entire appellate jurisdiction was distributed between the supreme court and the circuit court of appeals. Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. 517.

The circuit courts of appeals succeed to the appellate jurisdiction of the circuit courts under Rev. St. § 763, for reviewing habeas corpus proceedings in the district courts, Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. 517; Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536; U. S. v. Fowkes (3d Circuit) 3 C. C. A. 394, 53 Fed. 13; and to the appellate jurisdiction under Rev. St. § 4980, in bankruptcy cases, but only where the judgment or decree of the district court is final, Duff v. Carrier (3d Circuit) 5 C. C. A. 178, 55 Fed. 433; In re Briggs (2d Circuit) 9 C. C. A. 585, 61 Fed. 498. But the supervisory jurisdiction over bankruptcy proceedings conferred on the circuit courts by Rev. St. § 4986, is not affected by this act. Id. To the same effect is Huntington v. Saunders (1st Circuit) 18 C. C. A. 409, 72 Fed. 10.

The circuit court of appeals has no jurisdiction to award a writ of habeas corpus, to be served outside of the circuit for which it sits, to secure the release of a person there held in custody. In re Boles (8th Circuit) 1 C. C. A. 48, 48 Fed. 75.

There is no limitation upon the jurisdiction of the circuit court of appeals in respect to the amount in controversy. Railroad Co. v. Amato (2d Circuit) 1 C. C. A. 468, 49 Fed. 881; Courtney v. President, etc., (8th Circuit) 1 C. C. A. 249, 49 Fed. 309.

The circuit courts of appeal have appellate jurisdiction in all cases in which original jurisdiction is conferred by reason of United States being plaintiffs or petitioners, including the case of a bill by the United States to cancel a patent for an invention. U. S. v. American Bell Tel. Co., 159 U. S. 548, 16 Sup. Ct. 69. 18 The words "unless otherwise provided by law" do not refer to prior laws, but were inserted out of abundant caution to guard against implied repeals. Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. 517; Hubbard v. Soby, 146 U. S. 56, 13 Sup. Ct. 13; American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 13 Sup. Ct. 758; Louisville Public Warehouse Co. v. Surveyor (6th Circuit) 1 C. C. A. 371, 49 Fed. 561. A contrary opinion was intimated in Re Coe (1st Circuit) 1 C. C. A. 326, 49 Fed. 481.

The circuit courts of appeals have jurisdiction to review, on error, a judg ment of the circuit court in an action against the United States, brought under the Tucker act of March 3, 1887 (24 Stat. 505). Cases of this description are not "otherwise provided by law," within the meaning of this section. U. S. v. Coudert (2d Circuit) 19 C. C. A. 543, 73 Fed. 505.

20 A judgment of the circuit court on an appeal from the decision of the board of general appraisers is reviewable in the circuit court of appeals, the case being one "arising under the revenue laws." U. S. v. Hopewell (1st Circuit) 2 C. C. A. 510, 51 Fed. 798.

21 This clause does not give jurisdiction to the circuit court of appeals in case of a conviction of an infamous crime. U. S. v. Sutton (9th Circuit) 2 C. C. A. 115, 47 Fed. 129.

This provision does not confer upon the United States the right to bring up a criminal case of any grade after judgment below in favor of defendant. U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609.

22 The circuit court of appeals will not certify up a question which, in its opinion, has already been determined by the supreme court, in prior cases. Lau Ow Bew v. U. S. (9th Circuit) 1 C. C. A. 1, 47 Fed. 641. But see In re Lau Ow Bew, 141 U. S. 583, 12 Sup. Ct. 43, in which the supreme court held that the precise question at issue in this case had not been decided by it, and therefore awarded a writ of certiorari to the circuit court of appeals.

Where the district judge is disqualified by reason of having heard the question below, and the circuit judge is also perhaps disqualified by reason of having decided a similar question in another case, and it appears that another cause is pending in the supreme court which is connected with the one under consideration, so that the two can probably be argued together, it is a proper exercise of discretion to certify the cause to the supreme court. Bank v. Armstrong (6th Circuit) 1 C. C. A. 394, 49 Fed. 600.

A certificate of the circuit court of appeals which asserts that, as its judgment "differs from that of a co-ordinate court, the instruction of the supreme court is requested upon the question," is essentially defective, since it neither specifically sets forth the question to be answered, nor states that instruction is desired for the proper decision of such question. Watch Co. v. Robbins, 148 U. S. 266, 13 Sup. Ct. 594.

Questions certified to the supreme court by the circuit court of appeals must be upon distinct points or propositions of law, so that each may be definitely answered without regard to other issues of law in the case. Graver v. Faurot, 162 U. S. 435, 16 Sup. Ct. 799.

Whether a question shall be certified to the supreme court rests in the discretion of the circuit court of appeals; but it is not a discretion the exercise of which may be invoked by a party as of right. The certification is for the instruction of the court upon doubtful questions; and a party cannot be permitted, in advance of the argument of the cause, to move to have certain questions alleged to arise certified up. Railway Co. v. Pope (7th Circuit) 20 C. C. A. 253, 74 Fed. 1.

Petition for certificate denied where the questions involved were as to the liability of steamships for injury to baggage for negligent stowage and other causes. The Majestic (2d Circuit) 13 C. C. A. 676, 69 Fed. 844.

The circuit court of appeals cannot send up the whole record at the time of certifying a question, for that matter lies entirely with the supreme court. Bank v. Armstrong (6th Circuit) 1 C. C. A. 394, 49 Fed. 600.

23 A decree in a case of habeas corpus is "made final" by the effect of the section in giving the circuit court of appeals jurisdiction over that class of cases, and is reviewable on certiorari. Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. 517.

The power of the supreme court to review, by writ of certiorari to the circuit court of appeals, cases made final in that court, extends to cases brought there by appeals under section 7 from interlocutory decrees granting or continuing injunctions, and it is left to the discretion of the supreme court to determine at what stage of the proceedings it will exercise this power; but the writ will not be issued at all in such cases unless it is necessary to prevent extraordinary inconvenience and embarrassment in the conduct of the cause. American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 13 Sup. Ct. 758. It seems that the supreme court will not issue a writ of certiorari to review a judgment of the circuit court of appeals reversing a judgment of the circuit court, and remanding the cause for further proceedings, for such a judgment is not final, and the supreme court is therefore without jurisdiction to revise it. Railway Co. v. Osborne, 146 U. S. 354, 13 Sup. Ct.

Ct. 517.

certified,

Lau

24 The supreme court may by certiorari direct any case to be whether its advice is requested or not, except those which may 1- brought up by appeal or writ of error. Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Certiorari will be issued under this clause only in cases involving questions of gravity and importance, or in the interest of uniformity of decision. Ow Bew v. U. S., 141 U. S. 583, 12 Sup. Ct. 43; Id., 144 U.S. 47. 12 Sup. Ct. 517; In re Woods, 143 U. S. 202, 12 Sup. Ct. 417: American Const Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 13 Sup. Ct. me And of this character, manifestly, is the question whether, under the Chinese exclusion act (23 Stat. 115), taken in connection with the Chinese treaties (16 Stat. 14 and 22 Stat. 58), a Chinese merchant long domiciled in this country, on return ing from a temporary absence, can be denied the right to land without presenting the certificate of identity required by the sixth section of that

Id.

202, 12 Sup. Ct. 417.

But, on the other hand, certiorari will not issue to determine a question as to whether, in an action for personal injuries, a judgment of dismissal, at tas conclusion of plaintiff's evidence, is a bar, under the Minnesota law. to the other suit on the same cause of action, or whether, in such an action, the law in respect to the recovery of a servant against his master was properly ap plied to the special facts disclosed by the evidence. In re Woods, 133. Where the circuit court of appeals entertained an appeal from an order appointing a receiver for a railroad company, and enjoining the disposition of its property, and not only modified the injunction, but also directed the circuit was held that the case was not one for the interposition of the supreme court court to discharge the receiver and restore the property to the company, it by writ of certiorari, for this branch of its jurisdiction is to be sparingly exerin its immediate effect, nor so far-reaching in its consequences, as to warrant the supreme court in issuing the writ. American Const. Co. v. Jacksonville, cised; and the decree of the circuit court of appeals was neither so important by the district judge, setting aside an order made by the circuit judge, the Where, however, upon an appeal from an order made in the circuit court circuit judge takes part in the decision in the circuit court of appeals, the question whether he was not disqualified to so take part under section 3, is one which deeply affects the administration of justice in that court; and, and whether the decree of the circuit court of appeals was not therefore void, in order to determine the same, the supreme court will issue a rule to show cause why a writ of certiorari should not issue; and if it should be deterthat the decree was therefore void, the writ will issue to bring up and quash mined upon the hearing thereof that the circuit judge was disqualified, and American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S.

T. & K. W. Ry. Co., 148 U. S. 372, 13 Sup. Ct. 759.

the same.

372, 13 Sup. Ct. 759.

12 Sup. Ct. 517.

Amato, 144 U. S. 465, 12 Sup. Ct. 740.

the supreme court under this section. Lau Ow Bew v. U. S., 144 U. 8. 47, involves a money value, no appeal lies from the circuit court of appeals to 25 As a case of habeas corpus is not one in which the matter in controversy Where federal jurisdiction is dependent upon the fact that the defendexceeds $1,000, the judgment of the circuit court of appeals is reviewable as ant is a corporation created by an act of congress, and the amount involved of right on writ of error, since the cause does not fall within any of the classes of cases in which its judgment is made "final." Railroad Co. v. than $1,000, and not belonging to any of the classes in which the Judgment A party who takes to the circuit court of appeals a cause involving more of that court is made “final," does not waive his right to a review of such judgment by the supreme court, even though he might have taken the cause. direct from the circuit court to the supreme court in the first instance. Id. in an existing circuit court, an injunction shall be granted or continued SEC. 7. That where, upon a hearing in equity in a district court, or by an interlocutory order or decree, in a cause in which an appeal from

21 C.C.A.—b

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