A writ of mandamus cannot be used to bring up for review a
judgment of a circuit court on a plea to the jurisdiction.
Where a circuit court on demurrer vacated and quashed a writ of
replevin for want of jurisdiction, it was a final judgment, and it
was, if the case was otherwise within the court's jurisdiction,
subject to review on a writ of error.
Motion to dismiss a petition for mandamus to the Circuit Court
of the United States for the Western District of Virginia to direct
that court to take jurisdiction in a replevin suit.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This petition shows that the Baltimore & Ohio Railroad
Company brought an action of replevin against John E. Hamilton, in
the Circuit Court of the United States for the Eastern District of
Virginia, to recover the possession of certain railroad cars; that
a summons for the defendant and a writ of replevin for the property
were issued in the suit; that the defendant, Hamilton, was duly
served with the summons; that the property sued for was taken by
the marshal under the writ of replevin and delivered to the
company; that a declaration was filed, and that before pleading
thereto Hamilton appeared and moved to vacate the writ of replevin
because the court had no jurisdiction to issue the same. This
motion was heard, and thereupon the court ordered and adjudged
"that said writ be quashed and vacated, and all proceedings
subsequent to be of no avail," and that the action "be dismissed at
the costs of the plaintiff, for which execution may issue,"
&c.
Page 108 U. S. 567
This is a final judgment in the action, and, if the case is
otherwise within our jurisdiction, subject to review here on a writ
of error. Upon such a writ the question of the right to maintain
the action on which the case was adjudged below, if presented by
the record, may be reexamined here. This being so, a writ of
mandamus cannot issue. It has been often held that mandamus cannot
be used to perform the office of a writ of error.
Ex Parte
Hoard, 105 U. S. 578;
Ex Parte Loring, 94 U. S. 418.
In
Ex Parte Railway Company, 103 U.
S. 794, it was expressly decided that a writ of mandamus
could not be used to bring up for review a judgment of the circuit
court on a plea to the jurisdiction. That is practically what is
asked in this case.
The writ is denied.