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Railroad Co. v. Wiswall ( 1875 )


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  • 90 U.S. 507 (____)
    23 Wall. 507

    RAILROAD COMPANY
    v.
    WISWALL.

    Supreme Court of United States.

    Mr. E.C. Brearly, in support of the motion; Mr. P. Phillips, contra.

    *508 The CHIEF JUSTICE delivered the opinion of the court.

    The writ of error is dismissed upon the authority of Insurance Company v. Comstock.[*] The order of the Circuit Court remanding the cause to the State court is not a "final judgment" in the action, but a refusal to hear and decide. The remedy in such a case is by mandamus to compel action, and not by writ of error to review what has been done.[†]

    NOTES

    [*] 16 Wallace, 270.

    [†] King v. The Justices of Gloucestershire, 1 Barnewall & Adolphus, 1; 1 Chitty's General Practice, 736; Ex parte Bradstreet, 7 Peters, 647; Ex parte Newman, 14 Wallace, 165.