Columbus Const Company v. Crane Company/Opinion of the Court

This record discloses that there are pending two writs of error to the judgment of the circuit court,-one in the United States circuit court of appeals for the Seventh circuit, sued out on the 25th day of August, 1898, and one in this court, sued out on the 27th day of September of the same year. It also appears that the jurisdiction of the circuit court is not in question, but the contention is that that court erred in the exercise of its jurisdiction.

We are of the opinion that the act of 1891 (26 Stat. 826), under which these writs of error were sued out, does not contemplate several separate appeals or writs of error, on the merits, in the same case, and at the same time, to two appellate courts, and that, therefore, the writ in this court, which was taken while the case was pending in the circuit court of appeals, ought to be dismissed.

Such a question was considered by this court in McLish v. Roff, 141 U.S. 661, 12 Sup. Ct. 118.

That was a case of a writ of error from this court to the United States court for the Indian Territory, where a suit was pending and undecided, and the object of the writ was to get the opinion of this court on the question whether the lower court had jurisdiction of the suit. This court held that it was not competent for a party denying the jurisdiction of the trial court to bring that question here on a writ of error sued out before final judgment, and the writ was accordingly dismissed.

In the opinion, read by Mr. Justice Lamar, it was said:

'It is further argued, in support of the contention of the plaintiff in error, that, if it should be held that a writ of error would not lie upon a question of jurisdiction until after final judgment, such ruling would lead to confusion and absurd consequences; that the question of jurisdiction would be certified to this court, while the case on its merits would be certified to the circuit court of appeals; that the case would be before two separate appellante courts at one and the same time; and that the supreme court might dismiss the suit upon the question of jurisdiction, while the circuit court of appeals might properly affirm the judgment of the lower court upon the merits.

'The fallacy which underlies this argument is the assumption that the act of 1891 contemplates several separate appeals in the same case, and at the same time, to two appellate courts. No such provision can be found in the act, either in express terms or by implication. The true purpose of the act, as gathered from its context, is that the writ of error or the appeal may be taken only after final judgment, except in the cases specified in section 7 of the act.

'When that judgment is rendered, the party against whom it is rendered must elect whether he will take his writ of error, or appeal to the supreme court upon the question of jurisdiction alone, or to the circuit court of appeals upon the whole case. If the latter, then the circuit court of appeals may, if it deem proper, certify the question of jurisdic ion to this court.'

We think the main purpose of the act of 1891, which was to relieve this court of an enormous overburden of cases, by creating a new and distinct court of appeals, would be defeated, if a party, after resorting to the circuit court of appeals, and while his case was there pending, could be permitted, of his own motion, and without procuring a writ of certiorari, to bring the cause into this court.

Moreover, it is evident that such a movement is premature, for the controversy may be decided by the circuit court of appeals in favor of the plaintiff in error, and thus his resort to this court be shown to have been unnecessary.

Pullman's Palace-Car Co. v. Central Transp. Co., 171 U.S. 138, 18 Sup. Ct. 808, is referred to as a case in which there was pending at the same time an appeal from a decree of the circuit court to the circuit court of appeals and to this court. An obvious distinction between that case and this is that there the appeal was first taken to this court. Accordingly the circuit court of appeals declined either to decide the case on its merits to dismiss the appeal while the case was pending on a prior appeal to this court, and continued the cause, to await the result of the appeal to the supreme court. 39 U.S. App. 307, 22 C. C. A. 246, and 76 Fed. 401.

Without, therefore, considering other grounds urged in the brief of the defendant in error on its motion to dismiss, we think a due regard for orderly procedure calls for a dismissal of the writ of error, and it is so ordered.