Gurnee v. Patrick County , 11 S. Ct. 34 ( 1890 )

137 U.S. 141 (1890)

GURNEE
v.
PATRICK COUNTY.

No. 57.

Supreme Court of United States.

Argued and submitted November 7, 1890. Decided November 17, 1890. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF VIRGINIA.

Mr. A.T. Britton, Mr. A.B. Browne and Mr. Henry Wise Garnett for plaintiffs in error.

Mr. John W. Daniel for defendant in error.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

Prior to the act of March 3, 1875, there could be no appeal or writ of error from an order of a Circuit Court remanding a suit which had been removed, because such an order was not a final judgment or decree in the sense which authorized an appeal or writ of error. Railroad Co. v. Wiswall, 23 Wall. 507. But it was provided by that act that the order of a Circuit Court dismissing or remanding a cause to a State court, should be reviewable by the Supreme Court on writ of error or appeal as the case might be. 18 Stat. 471, c. 137, § 5. By section 6 of 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552, 555, c. 373,) as corrected by the act of August 13, 1888, (25 Stat. 433, c. 866,) the provision to that effect was repealed, and it was also provided by the act that "no appeal or writ of error from the decision of the Circuit Court so remanding such cause shall be allowed." Section 6 was accompanied by the proviso "that this act shall not affect the jurisdiction over or disposition of any suit removed from a court of any State, or suit commenced in any court of the United States, before the passage hereof except as otherwise expressly provided in this act."

In Morey v. Lockhart, 123 U.S. 56, it was held that this court had no power to review on appeal or writ of error an order of the Circuit Court remanding a cause to a State court, when it was commenced, removed and remanded after the act of March 3, 1887, went into effect. In Wilkinson v. Nebraska, 123 U.S. 286, it was decided that the proviso in section six of the act of March 3, 1887, related only to the jurisdiction of the Circuit Courts of the United States, and did not confer upon this court jurisdiction over a writ of error from a judgment remanding a cause to a State court, when the suit was begun and removed before the act of 1887, but not remanded until afterwards. In Sherman v. Grinnell, 123 U.S. 679, the order to remand was made while the act of March 3, 1875, was in force, but the writ of error was not brought until after the passage of the act of March 3, 1887, and it was held that this court could not take jurisdiction. The general rule was applied in these cases that if a law conferring jurisdiction is repealed without any reservation as to pending cases, all such cases fall with the law. Railroad Co. v. Grant, 98 U.S. 398, 401. The opinions in all of them were delivered by Mr. Chief Justice Waite, and they are decisive upon the disposition of the case before us.

This case was commenced and removed into the Circuit Court before the act of 1887 went into effect, but the suit was remanded afterwards. In this respect the situation is the same as in Wilkinson v. Nebraska, supra.

By the act of February 25, 1889, (25 Stat. 693, c. 236,) it was provided that in all cases where a final judgment or decree should be rendered in a Circuit Court of the United States in which there was a question involving the jurisdiction of the court, the party against whom the judgment or decree was rendered should be entitled to an appeal or writ of error to this court, without reference to the amount of such judgment or decree, but where it did not exceed the sum of $5000, the question of jurisdiction should alone be reviewable. In Richmond & Danville Railroad v. Thouron, 134 U.S. 45, we held that a remanding order was not a final judgment or decree, within the terms of that act, and that this court had no jurisdiction to review it.

It is contended, however, that the order of the Circuit Court here was such a final judgment, because the Circuit Court sustained the demurrer in remanding the cause, but the position is untenable. The demurrer brought into consideration the contention that the plaintiffs could not maintain their action because the court by law had no jurisdiction of their case, and thereupon the cause was remanded; and, having been remanded, this writ of error cannot be maintained, and is therefore

Dismissed.