The Judiciary Act of 1891 does not give the defeated party in a
circuit court the right to have his case finally determined on the
merits both in
this court and in the circuit court of appeals.
The case is stated in the opinion.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This suit was brought on the 20th day of October, 1893, by
Caldwell against Robinson, in the District Court of the Second
Judicial District of the State of Idaho.
It appears from the complaint that the plaintiff claimed to be
the owner of a certain tract of land in Idaho containing 640 acres,
and that the validity of his title depended partly, if not
altogether, upon the construction of a treaty made between the
government of the United States and the Nez Perces Indians on the
11th day of June, 1855, 12 Stat. 957. It also appears that there
was drawn in question in the circuit court the constitutionality of
the Act of Congress of March 3, 1873, 17 Stat. 627, c. 324.
A temporary injunction was issued in the cause enjoining the
defendant and his servants, counsel, and agents, and all others
acting in his behalf, from interfering or intermeddling with the
plaintiff in the control and peaceable possession of the lands and
premises described in the complaint.
Upon a petition subsequently filed in the state court by the
defendant, the cause was removed into the Circuit Court of
Page 165 U. S. 360
the United States for the District of Idaho, Northern Division.
By stipulation of the parties, the case was transferred to the
Central Division of that court.
The case was heard in the circuit court of the United States
upon a motion to dissolve the injunction and also, pursuant to a
stipulation of the parties, upon the merits. A final decree was
rendered adjudging the plaintiff to be the true and lawful owner of
an undivided one-half interest in the land described in the
complaint, and that his title be quieted against the claims,
demands, and pretensions of the defendant, whom the decree
perpetually estopped from setting up any claim to said land or to
any part thereof, as described in the decree. 59 F. 653. From this
decree the defendant asked and was allowed an appeal to this Court.
The citation on this appeal was served July 21, 1894.
It is conceded that the appellant also prosecuted an appeal to
the circuit court of appeals, which determined the case February 4,
1895, in favor of the plaintiff, the opinion of that court being
delivered by Judge Gilbert. 67 F. 391.
The opinion of Judge Beatty in the circuit court and of Judge
Gilbert in the circuit court of appeals both show that the
respective courts considered all the questions in the case
requiring a construction of the treaty of 1855, and involving the
validity of the Act of March 3, 1873.
The case was not brought to this Court from the circuit court of
appeals upon certiorari, but is here upon appeal directly from the
final decree in the circuit court of the United States.
Upon the present appeal, a question is raised by the appellant
as to the jurisdiction of the circuit court of the United States;
the contention being that the plaintiff could not have brought an
original suit in the circuit court of the United States, and
therefore that the case was not removable from the state court.
Tennessee v. Bank, 152 U. S. 454
Chappell v. Waterworth, 155 U. S. 102
no such question has been certified to this Court, nor does it
appear to have been raised either in the circuit court or in the
circuit court of appeals.
Page 165 U. S. 361
In McLish v. Roff, 141 U. S. 661
141 U. S. 668
Court said that, after a final judgment in the circuit court,
"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
jurisdiction to this Court."
In United States v. Jahn, 155 U.
, 155 U. S. 114
it was said:
"(1) If the jurisdiction of the circuit court is in issue, and
decided in favor of the defendant, as that disposes of the case,
the plaintiff should have the question certified, and take his
appeal or writ of error directly to this Court. (2) If the question
of jurisdiction is in issue, and the jurisdiction sustained, and
then judgment or decree is rendered in favor of the defendant on
the merits, the plaintiff, who has maintained the jurisdiction,
must appeal to the circuit court of appeals, where, if the question
of jurisdiction arises, the circuit court of appeals may certify
it. (3) If the question of jurisdiction is in issue, and the
jurisdiction sustained, and judgment on the merits is rendered in
favor of the plaintiff, then the defendant can elect either to have
the question certified, and come directly to this Court or to carry
the whole case to the circuit court of appeals, and the question of
jurisdiction can be certified by that court. (4) If, in the case
last supposed, the plaintiff has ground of complaint in respect of
the judgment he has recovered, he may also carry the case to the
circuit court of appeals on the merits, and this he may do by way
of cross-appeal or writ of error, if the defendant has taken the
case there, or independently, if the defendant has carried the case
to this Court on the question of jurisdiction alone, and in this
instance the circuit court of appeals will suspend a decision upon
the merits until the question of jurisdiction has been determined.
(5) The same observations are applicable where a plaintiff objects
to the jurisdiction, and is, or both parties are, dissatisfied with
the judgment on the merits."
In Chappell v. United States, 160 U.
, 160 U. S. 509
in which the constitutionality of an act of Congress was drawn in
Page 165 U. S. 362
the court said:
"No question of jurisdiction having been separately certified or
specified, and the writ of error having been allowed without
restriction, this Court, under the other clause of the statute
above cited [§ 5], has appellate jurisdiction of this case as one
in which the constitutionality of a law of the United States was
drawn in question, and, having acquired jurisdiction under this
clause, has power to dispose not merely of the constitutional
question, but of the entire case, including all questions, whether
or the jurisdiction or of merits."
As the construction of a treaty made under the authority of the
United States, and the constitutionality of an act of Congress,
were drawn in question in the circuit court, this Court could have
taken cognizance of the case upon the appeal from the circuit court
and determined those questions; and, having thus acquired
jurisdiction of the cause, it could have determined any question of
the jurisdiction of the circuit court appearing upon the record,
whether certified or not. 26 Stat. 826, c. 517, § 5 . But the
defendant elected to prosecute also an appeal to the circuit court
of appeals, and that court considered and determined the whole case
upon its merits.
It was not the purpose of the Judiciary Act of 1891 to give a
party who was defeated in a circuit court of the United States the
right to have the case finally determined upon its merits both in
this Court and in the circuit court of appeals. As no question of
jurisdiction was certified by the circuit court, and as the
defendant chose not to await the action of this Court upon the
appeal to it from the circuit court, but invoked the jurisdiction
of the circuit court of appeals upon the whole case, he must be
held to have waived his right to any decision here upon his direct
appeal from the circuit court.
We are of opinion that the present appeal must be dismissed.
After the final decree upon the merits in the circuit court of
appeals, this Court, under the circumstances stated, could properly
take cognizance of the case, it respect of any question involved in
it, only upon certiorari.