Zeller v. Switzer, 91 U.S. 487 (1875)

U.S. Supreme Court

Zeller v. Switzer, 91 U.S. 487 (1875) Zeller v. Switzer

91 U.S. 487

ERROR TO THE SUPREME COURT

OF THE STATE OF LOUISIANA

Syllabus

Where the supreme court of a state on appeal overruled an exception which had been sustained in a lower court, and, on setting aside the judgment below, remanded the case to be proceeded with according to law, held that the judgment of such supreme court was not final, and that the writ of error must be dismissed.

Page 91 U. S. 488

This action was brought upon a bond given to release the steamboat Frolic from a provisional seizure. The defendants answered the petition Nov. 25, 1870, setting up several defenses, and, Dec. 5, 1870, filed a peremptory exception. The court below, upon hearing, sustained this exception and gave judgment in favor of the defendants. The defenses set up in the answer were not passed upon.

From this judgment an appeal was taken to the Supreme Court, where a judgment was entered as follows:

"On appeal from the Second Judicial Court, Parish of Jefferson, it is ordered and adjudged that the judgment of the lower court be set aside; that the exception be overruled; that the case be remanded to be proceeded with according to law; and that the appellee pay costs of appeal."

To reverse this judgment the present writ of error has been prosecuted.

Page 91 U. S. 488

Mr. CHIEF JUSTICE WAITE delivered the opinion of the Court.

We think this motion must be granted. The judgment is one of reversal only, and the case is remanded to be proceeded with according to law. The supreme court decided that the defense set forth in the peremptory exception was not good, and that is all that court decided. The case was therefore sent back for trial upon the defenses set up in the answer, or any other that might be properly presented. If the decision below upon the exception had been correct, such a trial would have been unnecessary. The supreme court having decided that it was not correct, the inferior court must now proceed further. This brings the case within our ruling at the present term in Ex Parte French, supra, p. 91 U. S. 423.

The writ is dismissed.