A judgment of a court sustaining a demurrer under the following
circumstances is not a final judgment which can be reviewed by this
Court.
Information in the nature of a
quo warranto, calling
upon the President, Directors, and Company of the Miners' Bank of
Dubuque to show by what warrant they claimed the right to use the
franchise.
Plea, referring to an act of incorporation.
Replication, that the act of incorporation had been
repealed.
Rejoinder, that the repealing law was passed without notice to
the parties, and without any evidence of misuse of the
franchise.
Demurrer to the rejoinder.
Joinder in demurrer.
Sustaining the demurrer, without any further judgment of the
court, did not prevent the parties from continuing to exercise the
franchise, and therefore is not a final judgment.
The writ of error must, upon motion, be dismissed.
A motion was made by Mr. Grant and Mr. Hastings to dismiss the
writ of error in this case, upon the same grounds as in the
preceding case of
Sheppard v. Wilson, and upon the
additional ground, that the judgment in this case was not a final
judgment.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This case has been brought here by a writ of error to the
Supreme Court of the Territory of Iowa. A motion has been made to
dismiss the writ upon several grounds, and among others, upon the
ground that the judgment of the territorial court is not a final
one, and therefore, under the Act of June 12, 1838, ch. 96, ยง 9, 5
Stat. 238, cannot be brought here for revision by writ of
error.
It appears that an information in the nature of a
quo
warranto was filed by the United States in the District Court
of Iowa, against certain persons named in the information, who are
now the plaintiffs in error, charging them with having used the
liberties and
Page 46 U. S. 214
franchises of President, Directors, and Company of the Miners'
Bank of Dubuque, without any lawful authority; and calling upon
them to show by what warrant they claim the right to use the
liberties and franchises aforesaid.
The plaintiffs in error appeared, and pleaded that the
privileges and franchises which they were exercising were conferred
on them by a charter of incorporation, duly passed by the proper
authority, which is more particularly set forth in the plea, but
need not be here stated.
To this plea, the defendant in error replied, that the act of
incorporation conferring the privileges in question was repealed by
the Legislature of Iowa, and the plaintiffs in error rejoined,
averring that the repealing law was passed without any notice to
them, or any opportunity afforded them of being heard in their
defense, and without any evidence of the abuse and misuse of any of
the liberties and franchises in question. To this rejoinder the
defendant in error demurred, and the plaintiffs joined in demurrer,
and at the trial of the case, the following judgment was given by
the court:
"It appears to the court that the said rejoinder, and the
matters therein contained, are not sufficient in law to bar or
preclude the said plaintiffs from having and maintaining their
aforesaid information thereof against the said defendants, and that
said demurrer ought to be sustained."
"Therefore it is ordered by the court here that the said
defendants take nothing by their said rejoinder and that they have
leave to amend or answer over to the said plaintiffs' replication,
by Monday morning next, at the meeting of the court."
No amendment, however, appears to have been made, nor any
further proceeding to have been had in the district court, but upon
the judgment above stated the case was removed to the supreme court
of the territory, where the judgment of the district court was
affirmed, and a
procedendo awarded.
It is evident that this judgment is not a final one against the
plaintiffs in error. It merely decides, that the rejoinder and the
matters therein contained are not sufficient to bar the
information, and that the demurrer ought to be sustained, and that
the plaintiffs in error take nothing by their rejoinder. But there
is no judgment of ouster against them, nor anything in the judgment
which prevents them from continuing to exercise the liberties and
privileges which the information charges them to have usurped. In
order to make the decision a final one, the court, under the
opinion expressed by them, should have proceeded to adjudge that
the plaintiffs in error do not in any manner use the privileges and
franchises in question, and that they be forever absolutely
forejudged and excluded from exercising or using the same, or any
of them, in future. And we presume that the supreme court of the
territory awarded the
procedendo to the district court in
order to enable it to proceed
Page 46 U. S. 215
to final judgment, the supreme court having no power to give a
judgment of ouster, in the shape in which the case came before
it.
Inasmuch, therefore, as there has been no final judgment, the
writ of error from this Court must be dismissed for want of
jurisdiction. And being dismissed on this ground, it is unnecessary
to examine the other objections which have been taken in support of
the motion.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the Territory of Iowa and was argued by
counsel. On consideration whereof, and it appearing to the Court
here upon an inspection of said transcript that the judgment of the
said supreme court is not a final one in the case, it is thereupon
now here ordered and adjudged by this Court that this writ of error
be and the same is hereby dismissed for the want of
jurisdiction.