A judgment of the Circuit Court of Virginia is not final for the
purpose of review in this Court while reviewable at discretion by
the court of appeals of the state.
Therefore, a case by its nature reviewable here only by
certiorari under the Act of September 6, 1916, c. 448, 39 Stat.
726, in which the Virginia Court of Appeals did not finally deny a
writ of error
Page 248 U. S. 273
until November 13, 1916, cannot be brought here by writ of
error, although the judgment of the Circuit Court preceded the act
and the act except judgment rendered before it became operative,
i.e., 30 days from its date.
Writ of error dismissed.
To recover for the wrongful death of Andrews, a locomotive
engineer in the employ of the defendant in error, the plaintiff in
error, the representative of his estate, commenced this suit in
April, 1914. Both the Employers' Liability Act and the act of
Congress providing for the inspection of boilers of locomotives
were alleged. Act of April 22, 1908, c. 149, 35 Stat. 65; Act of
February 17, 1911, c. 103, 36 Stat. 913. On October 12, 1914, there
was a judgment on a verdict in favor of the plaintiff. A writ of
error having been allowed by the Court of Appeals of Virginia, the
judgment was, on January 13, 1916, reversed, and the case remanded
for a new trial.
Virginian Ry. Co. v. Andrws' Adm'x, 118
Va. 482. The Circuit Court of Montgomery County, in which the case
was tried, thereupon, by consent of the parties, transmitted it for
trial to the Circuit Court of Roanoke County, in which court, on
the 16th day of June, 1916, there was judgment in favor of the
defendant. Thereupon a petition for writ of error to review this
judgment was separately and out of term presented to the judges of
the Court of Appeals and was denied, and on the opening of the term
was, in accordance with the Virginia law, presented to the court,
and was there finally denied on November 13, 1916. Then, on the
27th of November, 1916, a petition was presented to the presiding
judge of the Circuit Court of Roanoke County for the allowance of a
writ of error from this Court, to review the judgment of that court
of June 16, 1916, which was allowed, resulting in the case which is
before us.
Page 248 U. S. 274
MR. CHIEF JUSTICE WHITE, after making the foregoing statement of
the case, delivered the opinion of the Court.
At the threshold, there arises a question of our jurisdiction
which we may not overlook, and which we must therefore decide. The
question is, has this Court power by writ of error to review the
judgment below -- or, in other words, is the authority of the Court
to review that judgment confined by the Act of September 6, 1916,
c. 448, 39 Stat. 726, to the right to do so by certiorari in the
mode and time provided by that act? Considering the subject only
from the character of the controversy, it is indisputable that the
case comes within the generic class as to which the power to review
by writ of error was taken away by the Act of 1916, and the
authority to certiorari substituted. It results that, unless the
judgment in question comes under some limitation or exception
provided by the statute to the general rule which it establishes,
we have no jurisdiction.
There is no room for such exception unless it results from the
provision in the statute taking out of the reach of its terms
judgments rendered before it became operative. The act was approved
on September 6, 1916, and was made operative 30 days thereafter. In
form, the judgment to which the writ of error was addressed was
rendered on June 16, 1916, before the operation of the statute, and
was therefore outside of its provisions. But the question remains,
was the judgment a final judgment at the date named, or did it
become so only by the exercise by the Court of Appeals of its power
as manifested by its declining to take jurisdiction on November 13,
1916,
Page 248 U. S. 275
after the passage of the act? Undoubtedly, before the action of
the Court of Appeals, the judgment was not final, and was
susceptible of being reviewed and reversed by that court.
Undoubtedly also, until the Court of Appeals acted, the trial court
was not the court of last resort of the state whose action could be
here reviewed. The contention, therefore, that the judgment of the
trial court was a final judgment susceptible of being here reviewed
by writ of error must rest upon the impossible assumption that the
finality of that judgment existed before the happening of the cause
by which alone finality could be attributed to it.
It is true that, under the law of Virginia, in a case like this,
the power of the Court of Appeals to review the judgment of the
trial court was gracious or discretionary, and not imperative or
obligatory; but the existence of the power, and not the
considerations moving to its exercise, is the criterion by which to
determine whether the judgment of the trial court was final at the
time of its apparent date, or became so only from the date of the
happening of the condition -- the action of the Court of Appeals --
which gave to that judgment its only possible character of finality
for the purpose of review in this Court. Nor is the result thus
stated a technical one, since it rests upon the broadest
considerations inhering in the very nature of our constitutional
system of government, and material therefore to the exercise by
this Court of its rightful authority. That this is true would seem
to be demonstrated by considering that, if it were not so, a
judgment of a state court susceptible of being reviewed by this
Court would, notwithstanding that duty, be open at the same time to
the power of a state court to review and reverse, thus in substance
depriving each court of its power and begetting the possibility of
conflict and confusion.
From this it follows that the judgment to which the writ of
error was addressed was in substance a judgment
Page 248 U. S. 276
rendered after the going into effect of the Act of 1916, and was
only reviewable by certiorari, as provided in that act. The writ of
error therefore must be, and it is,
Dismissed for want of jurisdiction.
