The Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, 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 therefore the writ in this case in this Court, which
was taken while the case was pending in the circuit court of
appeals, is dismissed.
In May, 1891, the Columbus Construction Company, a corporation
of the State of New Jersey, brought in the Circuit Court of the
United States for the Northern district of Illinois an action at
law against the Crane Company, a corporation of the State of
Illinois. The case was put at issue, and the trial resulted in a
verdict and judgment in favor of the plaintiff in the sum of
$48,000. This judgment was reversed by the circuit court of appeals
upon a writ of error sued out by the defendant. 73 F. 984.
Thereafter the case was again tried, and resulted in a verdict and
judgment in favor of the defendant, upon a plea of set-off, in the
sum of $98,085.94, as of the date of March 2, 1898.
On the 25th day of August, 1898, a writ of error to reverse this
judgment was sued out by the plaintiff from the Circuit Court of
Appeals of the Seventh circuit, where the case is now pending.
On the 27th day of September, 1898, the plaintiff also sued out
a writ of error from this Court. On April 17, 1899, the defendant
in error filed a motion to dismiss this writ of error, and on the
same day the plaintiff in error filed a petition for a writ of
certiorari to the Circuit Court of Appeals of the Seventh
circuit.
Page 174 U. S. 601
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the 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 March 3, 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.
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
Page 174 U. S. 602
to the circuit court of appeals; that the case would be before
two separate appellate 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 jurisdiction 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 Transportation Co.,
171 U. S. 138, 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 or
Page 174 U. S. 603
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. 76 F. 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.
Dismissed.
