1. On a jurisdictional review under Jud.Code § 238, the district
judge's certificate of a jurisdictional question does not relieve
this Court of the duty of determining for itself whether the
question certified is one of the jurisdiction of the lower court as
a federal court. P.
264 U. S.
442.
2. Where an attachment suit in New York against the government
of Mexico was removed to the district court and dismissed for
lack
Page 264 U. S. 441
of jurisdiction upon the ground of sovereign immunity,
held that a writ of error from this Court would not lie
under§ 238, since the question was one of general law, applicable
to state and federal courts alike, and that the case should be
transferred to the circuit court of appeals under Jud.Code, §
238(a). P.
264 U. S.
442.
Case transferred to circuit court of appeals.
Error to a Judgment of the district court dismissing, for want
of jurisdiction, an action by attachment against the government of
Mexico, removed from a court of New York.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The Oliver American Trading Company, Inc., a Delaware
corporation, brought this suit, in the Supreme Court of New York,
against the United States of Mexico and the National Railways of
Mexico. Service was made by attaching tangible personal property
and credits within the state alleged to belong to the defendants
and summons. In the state court, the government of Mexico,
appearing specially, moved seasonably that the attachment be
quashed and that the suit be dismissed. Before the motion was
heard, the case was removed on its petition to the Federal Court
for Southern New York. There, Mexico, again appearing specially,
procured a rule that the plaintiff show cause why the attachment
should not be vacated and the suit dismissed upon the ground that
it is "an independent sovereign nation, . . . immune from process
of the courts except upon its consent."
Page 264 U. S. 442
The plaintiff asserted that, at the time when the suit was begun
and when the rule was returnable, Mexico had not been recognized by
our government, and contended that, being a nonrecognized foreign
government, it was suable as a foreign corporation under
subdivision 7 of § 7 of the Civil Practice Act of New York. It was
conceded that National Railways of Mexico is merely a name for the
system of railroads controlled and operated by the Mexican
government. After the hearing on the motion, but before entry of
the judgment below, Mexico was duly recognized by the United
States, and diplomatic relations between the two governments were
resumed. Thereupon, and solely upon this ground, the district court
held that Mexico was entitled to immunity from suit in the courts
of the United States of America unless upon its own consent,
granted the motion to vacate the attachment and dismiss the suit,
and issued the certificate of a jurisdictional question provided
for in § 238 of the Judicial Code. Here, the defendant in error
moves to dismiss this writ of error for want of jurisdiction in
this Court on the ground that the case below did not present the
question of jurisdiction of the district court as a federal
court.
The fact that the district judge issued the certificate does not
relieve this Court from the duty of determining for itself whether
the question which was certified is in truth one of the
jurisdiction of the lower court as a federal court.
Bogart v.
Southern Pacific Co., 228 U. S. 137,
228 U. S. 144;
Smith v. Apple, ante, p.
264 U. S. 274.
Such a question is presented whenever there is in controversy the
power of the court, as defined or limited by the Constitution or
statutes of the United States, to hear and determine the cause.
The Pesaro, 255 U. S. 216,
255 U. S. 218.
It is not presented where the question of jurisdiction to be
decided turns upon matters of general law applicable alike to
actions brought in other tribunals.
De Rees v. Costaguta,
254 U. S. 166,
254 U. S. 173.
The question of sovereign immunity is such a question of
general
Page 264 U. S. 443
law, applicable as fully to suits in the state courts as to
those prosecuted in the courts of the United States.
*
As the writ of error from this Court was improvidently allowed,
the case must be transferred to the Circuit Court of Appeals for
the Second Circuit. Section 238(a) of the Judicial Code, as added
by Act of September 14, 1922, c. 305, 42 Stat. 837.
It is so ordered.
* Cases like
McNeill v. Southern Ry. Co., 202 U.
S. 543, and
Western Union Telegraph Co. v.
Andrews, 216 U. S. 165, in
which questions of the immunity of state officers from suit are
considered by this Court on direct appeal under § 238, come here by
that method because of the constitutional question involved.
Compare Illinois Central R. Co. v. Adams, 180 U. S.
28,
180 U. S.
37-38