Where a bill in equity was demurred to on the ground that the
Circuit Court had no jurisdiction as such, and also on the ground
that the remedy was at law, and the demurrer was sustained and the
bill dismissed on the latter ground without prejudice to an action
at law, the City of New Orleans, defendant below, was not aggrieved
in a legal sense by its own success, and cannot bring the decree in
its favor here on a certificate of jurisdiction.
THE CHIEF JUSTICE:
Emsheimer filed his bill against the City of New Orleans, on
behalf of himself and others similarly situated, in the Circuit
Court for the Eastern District of Louisiana, seeking to collect
certain certificates of indebtedness issued by the Board of
Metropolitan Police of New Orleans through an accounting; to which
the city demurred on the grounds that the circuit court had no
jurisdiction as such for want of proper averments of diverse
citizenship, that necessary parties were lacking, in equity.
The circuit court held that the averments in respect of
citizenship were sufficient, but sustained the demurrer on the
Page 181 U. S. 154
ground that there was no equity in the bill, and dismissed the
bill "for want of equity with full reservation of complainant's
right to sue and proceed at law."
Subsequently, an appeal was granted to this Court on application
of the city
"for the sole and exclusive purpose of having a review of the
finding, decision, and decree of the court overruling the said
first ground of the said demurrer, by which the jurisdiction of
this court and the sufficiency of the averments of the bill
purporting to show the same are put at issue."
Defendant below sought no affirmative relief, but simply to
defeat the suit. In this it succeeded, and the decree is a bar to
another suit in equity on this cause of action so long as it stands
The decree did not injure defendant, but sustained its
contention, and defendant is in no position to complain that it is
aggrieved by its own success. The decree cannot be reversed at its
instance because put on one of the grounds it urged, rather than
If complainant brings an action at law and the question of
federal jurisdiction is in issue, or if this decree should be
hereafter reversed and federal and equity jurisdiction sustained,
it will be time enough if final judgment or decree passes against
defendant in the circuit court for the question of jurisdiction to
be certified. United States v. Jahn, 155 U.
; Smith v. McKay, 161 U.