The remedy by certiorari which, in certain classes of cases, is
substituted by the Act of September 6, 1916, c. 948, 39 Stat. 726,
for the remedy by writ of error previously allowed by Rev.Stats., §
709, Jud.Code, § 237, is confined to final judgments, and finality,
in the one case as in the other, is determined by the face of the
record and the formal character of the judgment rendered by the
state court.
In an action by a father to recover a share of a fund collected
by his deceased son's administrator as damages under the Employers'
Liability Act, the state trial court rejected the father's claim
entirely. The state supreme court, upholding his right but not
specifically fixing the amount to which he was entitled, directed a
new trial to accomplish that result. Assuming the judgment final in
the sense that it determined the ultimate right and the general
principles by which it was to be measured,
held,
nevertheless, that it was not final in the sense of the Act of
September 6, 1916,
supra, and that an application for
certiorari under that statute was premature.
Petition for a writ of certiorari to review 39 S.D. 64
denied.
The case is stated in the opinion.
Memorandum opinion by MR. CHIEF JUSTICE WHITE, by direction of
the Court.
A railroad in whose service Tobin lost his life while actually
engaged in carrying on interstate commerce, admitting
Page 245 U. S. 19
liability under the act of Congress, paid the conceded loss to
his administrator. A father and mother, but no widow or children,
survived. The father, the respondent, sued in a state court to
recover half the amount as his share of the loss. Setting aside the
action of the trial court rejecting the claim, but not specifically
fixing the amount of the father's recovery, the Supreme Court of
South Dakota directed a new trial to accomplish that result.
Application for certiorari was then made by the petitioner on the
ground that such decision involved questions under the Employers'
Liability Act reviewable by certiorari under the Act of Congress of
September 6, 1916, c. 448, 39 Stat. 726.
The act in question, although it deprived of the right of review
by writ of error which had hitherto obtained in certain cases and
substituted as to such cases the right of petitioning for review by
certiorari, subjected this last right to the same limitation as to
the finality of the judgment of the state court sought to be
reviewed which had prevailed from the beginning under § 709,
Rev.Stats., § 237, Judicial Code. Finality therefore continues to
be an essential for the purposes of the remedy by certiorari
conferred by the Act of 1916.
It may be indeed said that, although the case was remanded by
the court below for a new trial, the action of the court was in a
sense final because it determined the ultimate right of the father
to recover and the general principles by which that right was to be
measured. But that contention is not open, as it was settled under
§ 709, Rev.Stats., § 237, Judicial Code, that the finality
contemplated was to be determined by the face of the record and the
formal character of the judgment rendered -- a principle which
excluded all conception of finality for the purpose of review in a
judgment like that below rendered.
Haseltine v. Bank,
183 U. S. 130;
Schlosser v. Hemphill, 198 U. S. 173;
Louisiana Navigation Co. v.
Oyster Commission
Page 245 U. S. 20
of Louisiana, 226 U. S. 99;
Coe v. Armour Fertilizer Works, 237 U.
S. 413,
237 U. S.
418-419. The reenactment of the requirement of finality
in the Act of 1916 was, in the nature of things, an adoption of the
construction on the subject which had prevailed for so long a
time.
There being then no final judgment within the contemplation of
the Act of 1916, the petition for a writ of certiorari is
Denied.
