Mercantile National Bank at Dallas v. Langdeau/Dissent Harlan

Mr. Justice HARLAN, dissenting.

The Court's opinion in these appeals, and some of the things said in Local No. 438 Const. and General Laborers' Union, AFL-CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531, cut deeply into the statutory requirement of 'finality' limiting our jurisdiction to review state court judgments.

That requirement is more than a technical rule of procedure, yielding when need be to the exigencies of particular situations. Rather, it is a long-standing and healthy federal policy that protects litigants and courts from the disruptions of piecemeal review and forecloses this Court from passing on constitutional issues that may be dissipated by the final outcome of a case, thus helping to keep to a minimum undesirable federal-state conflicts. In this instance it precludes, in my opinion, the exercise of our appellate jurisdiction at this stage of the proceedings.

The state court judgments now sought to be reviewed are nothing more than a determination that venue was properly laid in the county where suit against these appellants was brought. Such a determination, being tantamount to a denial of a motion to dismiss is a classic example of an interlocutory ruling that is only a step towards ultimate disposition and is not in itself reviewable as a final judgment. See Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911; 6 Moore, Federal Practice 54.12(1), 54.14; see also Clinton Foods v. United States, 4 Cir., 188 F.2d 289, 291 -292, and cases cited therein. It fits squarely within the general rule that a judgment is not final unless it terminates the litigation and leaves nothing to be done but to enforce by execution what has been demanded. See Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377.

It is true that several specific, and narrowly circumscribed, exceptions to this general rule have been developed in order to deal with extraordinary situations where a judgment is final in substance although not in form. But these appeals do not fall within any of these exceptions.

Thus this is not a situation in which what remains to be done in the state courts is a mere formality, or in which the appellants concede that their whole case must stand or fall on the federal claim. Compare Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80; Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 73 S.Ct. 749, 97 L.Ed. 1094; Local No. 438 Const. and General Laborers' Union, AFL-CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531. Quite the contrary, appellants vigorously deny their liability on the merits of the appellee's claim.

Nor is this a case like Radio Station WOW v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092, where the challenged order required an immediate transfer of property, and where the remaining matters left to be disposed of in the state court were wholly unrelated, would almost certainly have raised no federal question, and could not have mooted the question sought to be reviewed. Here, a victory for appellants on the merits would clearly moot the federal question before us today. 'It is of course not our province to discourage appeals. But for the soundest of reasons we ought not to pass on constitutional issues before they have reached a definitive stop.' Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 71, 68 S.Ct. 972, 978, 92 L.Ed. 1212.

On the other hand, if appellants lost on the merits, the venue question raised in the present appeals would then be open for review by this Court. Hence the controversy is wholly different from Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, where the challenged order would not have been merged in the final judgment and where, unless immediate review had been granted, no appellate determination of the right claimed could ever have been obtained.

Failing to come within any of these limited exceptions, appellants fall back on the familiar assertion that they should not be subjected to a burdensome trial in the wrong forum, a claim which the Court finds compelling. But surely such a claim cannot be accepted, for there is a large variety of situations in which a ruling on a preliminary matter will determine whether or not the case is to continue; yet a decision that does not definitively terminate the case is plainly not final. To rely on the hardship of being subjected to trial is to do away with the distinction between interlocutory and final orders. It is for this reason that the Court has always held that the hazard of being subjected to trial does not invest a preliminary ruling with the finality requisite to appeal. E.g., Parr v. United States, 351 U.S. 513, 519-520, 76 S.Ct. 912, 916-917, 100 L.Ed. 1377.

This is not a case of first impression. In Cincinnati Street R. Co. v. Snell, 179 U.S. 395, 21 S.Ct. 205, 45 L.Ed. 248, the railway company sought to appeal from a determination by the highest court of the State directing a change of venue and remanding the case for further proceedings. The railway company contended that the state law under which the change of venue had been ordered was unconstitutional. The case is thus squarely in point, since the appellants here are also challenging the constitutionality of the application of local venue provisions. This Court unanimously dismissed the writ of error for lack of finality, stating:

'It is true that the order appealed from finally adjudges     that a change of venue should have been allowed; but the same      comment may be made upon dozens of interlocutory orders made      in the progress of a cause. Indeed, scarcely an order is     imaginable which does not finally dispose of some particular      point arising in the case; but that does not justify a review      of such order, until the action itself has been finally      disposed of. If every order were final, which finally passes     upon some motion made by one or the other of the parties to a      cause, it might in some cases require a dozen writs of error      to dispose finally of the case.' 179 U.S., at 397, 21 S.Ct.,      at 206.

The Cincinnati case also shows the invalidity of the argument of these appellants that they may be spared a trial if their venue claim is presently sustained. For the Court in Cincinnati was unmoved by the circumstance that the railway company there had already won a jury verdict which had been set aside by the state court because of faulty venue. A fortiori, in a proceeding where the action has not yet been tried, the Court should be deaf to the similar claims of these appellants.

The Court's decision in these appeals throws the law of finality into a state of great uncertainty and will, I am afraid, tend to increase future efforts at piecemeal review.

These appeals should be dismissed.