A judgment or decree, to be final within the meaning of that
term as used in the acts of Congress giving this Court jurisdiction
on appeals and writs of error, must terminate the litigation
between the parties on the merits of the case, so that, if there
should be an affirmance here, the court below would have nothing to
do but to execute the judgment or decree it had already rendered.
Bostwick v. Brinkerhoff, 108 U. S. 3,
followed.
When, therefore, the Court of Appeals of the District of
Columbia reverses an order of the Supreme Court of the District in
proceedings for the condemnation
Page 187 U. S. 240
of land under the act of Congress of March 3, 1899, 30 Stat.
1381, and remands the case to the lower court for further
proceedings as directed by the statute, the decree of the Court of
Appeals is not such a final judgment as is reviewable in this
Court, and an appeal therefrom will be dismissed.
See also
Macfarland v. Byrnes, decided this term, p.
187 U. S. 248,
post.
Under the act of Congress entitled "An Act for the Extension of
Pennsylvania Avenue Southeast, and for Other Purposes," approved
March 3, 1899, 30 Stat. 1381, c. 461, the Commissioners of the
District of Columbia were, by the terms of section 5 of said
act
"authorized and directed to institute by a petition in the
Supreme Court of the District of Columbia, sitting as a district
court, a proceeding to condemn the land necessary for the extension
and widening of Sherman Avenue from Florida Avenue to Whitney
Avenue with the uniform width of one hundred feet."
The provisions of said section 5 are as follows:
"SEC. 5. That, within ninety days after the approval of this
act, the Commissioners of the District of Columbia be, and they are
hereby, authorized and directed to institute by a petition in the
Supreme Court of the District of Columbia, sitting as a district
court, a proceeding to condemn the land necessary for the extension
and widening of Sherman Avenue from Florida Avenue to Whitney
Avenue with the uniform width of one hundred feet."
"That, of the amount found due and awarded for damages for and
in respect of the land condemned under this act for the extension
and widening of said Sherman Avenue, not less than one-half thereof
shall be assessed by said jury in said proceedings against those
pieces or parcels of ground abutting on both sides of Sherman
Avenue, and the extension thereof as herein provided, to a distance
of three hundred feet from the building lines, on the east and west
sides of Sherman Avenue as widened and extended:
Provided,
That no assessment shall be made against those pieces or parcels of
ground out of which land has already been dedicated to the District
of Columbia for the purpose of widening Sherman Avenue as herein
provided for."
Under the authority thereby conferred, a petition was filed by
the Commissioners of the District of Columbia in the Supreme
Page 187 U. S. 241
Court of the District of Columbia, sitting as a district court,
upon the 31st day of May, 1899, being No. 555 on the district court
docket, praying that the court direct the marshal of the District
of Columbia to summon a jury of seven judicious, disinterested men,
not related to any party interested, to be and appear on the
premises on a day specified, to assess the damages, if any, which
each owner of land through which Sherman Avenue is proposed to be
extended and widened as aforesaid may sustain by reason thereof,
and that such other and further orders might be made and
proceedings had as were contemplated by said act of Congress and by
chapter XI of the Revised Statutes of the United States relating to
the District of Columbia, to the end that a permanent right of way
for the public over the said lands might be obtained and secured
for the aforesaid extension and widening of Sherman Avenue.
Upon this petition, the said court, on the 16th day of
September, 1899, passed an order requiring interested parties to
appear in said court on or before the second day of October, 1899,
and show cause why the prayer of said petition should not be
granted, and why the proceedings directed in said act of Congress
should not be taken. Pursuant to such order, the jury was summoned
and impaneled by the marshal, and upon the 7th day of February,
1900, were sworn according to law, and thereafter the said jury
proceeded according to the provisions of chapter XI of the Revised
Statutes of the United States relating to the District of Columbia,
and having been upon the premises, in accordance with said statute,
on the 1st day of May, A.D. 1900, made out their written verdict,
which was signed by a majority of the said jurors. Upon the 9th day
of May, 1900, the same was filed in the said court under the Act of
March 3, 1899.
Thereafter, on the 3d day of July, 1901, the trial court passed
an order
nisi confirming said verdict, and requiring all
parties to appear and show cause on or before July 22 why such
verdict should not be finally confirmed by the court. Upon July 22,
1901, the appellees, in response to said order, filed their
exceptions to said verdict.
The court, having heard arguments upon the said exceptions,
Page 187 U. S. 242
on October 2, 1901, passed an order overruling the said
exceptions and finally ratifying and confirming in all respects the
said verdict.
Thereupon the appellees appealed the case to the Court of
Appeals. The Court of Appeals reversed the trial court, from which
decision the Commissioners of the District of Columbia have
appealed to this Court.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
Whether those provisions of section 263 of the Revised Statutes
of the District of Columbia which provide for a second jury are
applicable to this proceeding under the Act of March 3, 1899;
whether, if entitled to a second jury, the appellees waived such
right by filing, in the Supreme Court of the District, exceptions
to the verdict and award of the first jury, and by appealing from
the order of that court, overruling their exceptions and affirming
said verdict and award, to the Court of Appeals of the District,
and whether it was the duty of the Commissioners, and not the duty
of the parties claiming to have been dissatisfied with the verdict,
to demand a second jury, if a right to such jury exists, are
important questions, and we can well understand why those who are
entrusted with the administration of the law are anxious to have
them speedily and finally determined.
But we are of opinion that the case is not before us in a
condition to make it our duty to deal with those questions. The
decree of the Court of Appeals reversing the order of the Supreme
Court and remanding the cause to that court "that proceedings may
be taken and a jury of twelve ordered as directed by the statute"
is not a final decree from which an appeal will lie to this
Court.
Page 187 U. S. 243
It is contended by the learned counsel of the appellants that
the case is within the rulings of this Court in
Phillips v.
Negley, 117 U. S. 665, and
in
Humphries v. District of Columbia, 174 U.
S. 190. It is true that, in the first of those cases,
this Court entertained a writ of error to the Supreme Court of the
District, and reversed its judgment. But, in disposing of the
question raised whether the judgment of the court below was or was
not a final judgment, this Court said:
"Interpreting the judgment of the general term by the opinion of
the learned judge who spoke for the court, we must infer that it
was intended to dismiss the appeal for want of jurisdiction to
entertain it, on the ground that the order of the special term
vacating its own judgment, rendered at a previous term, was not
only within the power of that court, but was so purely
discretionary that it was not reviewable in an appellate court. The
same consideration is urged upon us as a ground for dismissing the
present writ of error for want of jurisdiction in this Court, it
being alleged that the order of the Supreme Court of the District
at special term is not only within the discretion of that court,
but that, as it merely vacates a judgment for the purpose of a new
trial upon the merits of the original action, it is not a final
judgment, and therefore not reviewable on writ of error. If,
properly considered, the order in question was an order in the
cause which the court had power to make at the term when it was
made, the consequence may be admitted that no appellate tribunal
has jurisdiction to question its propriety, for, if it had the
power to make it, and it was a power limited only by the discretion
of the court making it, as in other cases of orders setting aside
judgments at the same term at which they were rendered, and
granting new trials, there would be nothing left for the
jurisdiction of an appellate court to act upon. The vacating of a
judgment and granting a new trial, in the exercise of an
acknowledged jurisdiction, leaves no judgment in force to be
reviewed. If, on the other hand, the order was made without
jurisdiction on the part of the court making it, then it is a
proceeding which must be the subject of review by an appellate
court. The question of the jurisdiction of this Court to
entertain
Page 187 U. S. 244
the present writ of error therefore necessarily involves the
jurisdiction of the Supreme Court of the District, both at special
and general term, and the nature and effect of the order brought
into review, so that the question of our jurisdiction is
necessarily included in the question of the validity of the
proceeding itself. The legal proposition involved in the judgment
complained of, and necessary to maintain it, is that the Supreme
Court of this District at special term has the same discretionary
power over its judgments rendered at a previous term of the court,
without any motion or other proceeding to that end made or taken at
that term, to set them aside and grant new trials of the actions in
which they were rendered, which it has over judgments when such
proceedings are taken during the term at which they were rendered,
and that, this being true, the proceeding and order of the court,
in the exercise of this jurisdiction and discretion, cannot be
reviewed on appeal or writ of error."
The court proceeded to consider the question at length, and
having determined that the Supreme Court of the District had no
discretionary power to set aside judgments obtained at a previous
term where no proceeding for that purpose had been taken at that
term, held that the court had acted without jurisdiction, and that
its judgment was void and reviewable on error.
The distinction between that case and the present one is
therefore seen in the fact that, in the one, the Supreme Court of
the District acted without jurisdiction, and in the other, the
Court of Appeals was in the regular exercise of its appellate power
in reversing the judgment of the Supreme Court of the District and
awarding further proceedings. Such action in the present case may
have been erroneous, but if so, we cannot correct it until brought
before us by an appeal from a final judgment. The further
proceedings may possibly reach such a result that neither party
will desire an appeal.
In
Hume v. Bowie, 148 U. S. 245,
where this Court dismissed a writ of error to the Supreme Court of
the District of Columbia upon the ground that the judgment brought
here by the writ was not a final judgment, the case of
Phillips
v. Negley
Page 187 U. S. 245
was considered, and the distinction between a judgment ordering
a new trial when the court has jurisdiction to make such an order,
and a judgment where such jurisdiction does not exist, was pointed
out by the chief justice, and where it was held that, in the former
case, where jurisdiction existed, a judgment setting aside the
judgment of the trial court and awarding a new trial is not a final
judgment reviewable on error, and in the latter case, where
jurisdiction had ceased to exist by reason of lapse of time, a
judgment awarding a new trial is without jurisdiction, would be an
order in a new proceeding, and, in that view, final and
reviewable.
The other case relied on,
Humphries v. District of
Columbia, was a case where, in the Supreme Court of the
District, a verdict had been signed by all twelve of the jurors,
but one of them was disabled by illness from being present in court
when the verdict was delivered. Upon this verdict a judgment was
entered. Proceedings in error were taken, but were dismissed by the
Court of Appeals on account of a failure to have the bill of
exceptions prepared in time. Thereafter, and at a succeeding term,
the defendant against whom judgment had been entered filed a motion
to vacate the judgment on the ground that there was no valid
verdict, which motion was overruled. On appeal to the Court of
Appeals, this decision was reversed and the case remanded with
instructions to vacate the judgment, to set aside the verdict, and
award a new trial. This ruling was based on the proposition that
the verdict was an absolute nullity, and therefore the judgment
resting upon it void, and one which could be set aside at any
subsequent term. This view of the nature of the verdict was not
approved by this Court, which held that the defect or irregularity
in the rendering of the verdict was mere matter of error, and not
one which affected the jurisdiction.
In the present case, no attack is made on the jurisdiction of
either the Supreme Court of the District or of the Court of
Appeals. That the decree of the latter court was not meant to be
final is shown by its language, which does not definitely adjudge
the whole subject matter, but anticipates further action of the
supreme court. The litigation of the parties on the
Page 187 U. S. 246
merits of the case has not been terminated.
"The rule is well settled and of longstanding that a judgment or
decree, to be final within the meaning of that term as used in the
acts of Congress giving this Court jurisdiction on appeals and
writs of error, must terminate the litigation between the parties
on the merits of the case, so that, if there should be an
affirmance here, the court below would have nothing to do but to
execute the judgment or decree it had already rendered."
Bostwick v. Brinkerhoff, 106 U. S.
3.
We do not overlook the fact that this statement of the law was
made in a case where the appeal was taken directly from the decree
of the trial court, but we think the principle on which the rule
rests is applicable where the appeal is from the decree of an
intermediate appellate court.
We are unwilling to make any departure from the rule that
demands finality in a decree to render it subject to review on
appeal. It would be very unfortunate if mere errors in the
administration of statutes of this character, not going to their
validity or to the jurisdiction of the courts below, could be
brought here from time to time in advance of a final disposition of
the controversy.
The appeal is
Dismissed.
