Unless it appears from the record that the judgment sought to be
reviewed finally determines the cause, this Court is without
jurisdiction.
Where the judgment sought to be reviewed affirms the judgment
below but merely sustains the demurrer without dismissing the suit,
so that the cause is left standing in the lower court for further
proceedings, it is not a final judgment reviewable by this
Court.
The facts are stated in the opinion.
Memorandum opinion by direction of the Court. By MR. JUSTICE
HUGHES:
Motion to dismiss. This suit was brought by the railway company,
plaintiff in error, against the City of Olathe, Kansas, in the
District Court of Johnson County
Page 222 U. S. 186
in that state, to recover damages caused by the repeal of an
ordinance authorizing the use of certain streets of the city for an
interurban railway, and by the consequent prevention, until the
passage of a new ordinance, of its construction and operation. The
defendant demurred to the petition upon the ground that it did not
state facts sufficient to constitute a cause of action. The
district court sustained the demurrer, and its decision was
affirmed by the supreme court of the state. And this writ of error
is brought.
The record fails to disclose a final judgment. The supreme court
affirmed the judgment of the lower court, but this merely sustained
the demurrer without dismissing the suit. The supreme court did not
direct its dismissal, but the cause was left standing in the court
below for such proceedings as might be had according to law after
the decision on the demurrer, either by amendment of the petition
or entry of final judgment.
As it does not appear from the record that the judgment sought
to be reviewed was one which finally determined the cause, this
Court is without jurisdiction.
Miners' Bank of Dubuque v.
United States, 5 How. 213;
McComb v. Knox
County, 91 U. S. 1;
Great
Western Telegraph Company v. Burnham, 162 U.
S. 339;
Haseltine v. Central Bank of
Springfield, 183 U. S. 130.
Dismissed.