1. The decision in
Sandusky v. National
Bank, 23 Wall. 289, and
Hill v. Thompson,
94 U. S. 433,
that this Court cannot review the action of the circuit court in
the exercise of its supervisory jurisdiction over a judgment
rendered by the district court on a petition praying that a party
be adjudged a bankrupt reaffirmed.
2. No particular form of proceeding is required to remove such a
case to the circuit court.
3. A writ of error employed as "process" for the purposes of
that jurisdiction will not deprive the circuit court of its power
to proceed.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
On the 2d of May, 1872, the Globe Insurance Company, of
Cincinnati, filed a petition in the district court of the
United
Page 98 U. S. 367
States for the Northern District of Ohio, sitting in bankruptcy,
against the Cleveland Insurance Company, asking to have the
last-named company adjudged a bankrupt. To this petition the
Cleveland Insurance Company in due time appeared and filed its
answer, and on the 16th of October, 1874, after hearing in the
district court, a judgment was entered dismissing the petition. On
the 16th of December, a bill of exceptions was signed by the
district judge and filed in the cause, which contained a statement
of all the evidence submitted upon the hearing, with the findings
of the district court thereon both as to the facts and the law. On
the same day, the following writ of error, omitting the mere formal
parts, was sued out of the circuit court:
"Because in the record and proceedings, and also in the
rendition of judgment, in a certain matter which is in the said
district court in bankruptcy before you, wherein the Globe
Insurance Company is petitioning creditor against the Cleveland
Insurance Company, debtor, a manifest error hath happened, to the
great damage of the said Globe Insurance Company, as by its
complaint appears, and it being fit that the error, if any there
hath been, should be duly corrected and full and speedy justice
done to the parties aforesaid in this behalf, you are hereby
commanded, if judgment be therein given, that then, under your
seal, distinctly and openly, you send the record and proceedings,
with all things concerning the same, to the circuit court of the
United States for the Sixth Circuit and Northern District of Ohio,
together with this writ, so that you have the same at Cleveland, in
said district, on the fifth day of January next, in the said
circuit court to be then and there held, that the record and
proceedings aforesaid being inspected, the said circuit court may
cause further to be done therein to correct that error what of
right and according to the law and custom of the United States
should be done."
On the next day, in obedience to the command of this writ, a
transcript of the proceedings and judgment of the district court,
including the bill of exceptions, was sent to the circuit court,
and on the 27th of November, 1875, the Cleveland Insurance Company
appeared in the circuit court and moved to dismiss the writ, for
the following reasons:
Page 98 U. S. 368
"1st, because this being a petition in involuntary bankruptcy,
where the bankrupt or debtor demanded no jury, but hearing was had
to the court, the case is not removable into this Court by writ of
error, but by petition for review, or other proper process under
the first clause of the second section of the Bankrupt Act."
"2d, because the debt or damages claimed in the petition herein
do not amount to more than $500; in fact, no debt or damages are
claimed at all."
"3d, because the writ of error herein was not sued out or taken
within ten days after the entry of the decree or decision of the
district court herein, nor were the statutes regulating the
granting of writs of error complied with within ten days after the
entry of the decree or decision of the district court."
This motion was overruled, and on the 15th of June, 1876, the
circuit court, after hearing,
"as well upon the transcript of the judgment and other
proceedings between the parties in the district court . . . brought
here by writ of error from this Court to said district court, as
also upon the matters by the said Globe Insurance Company herein
assigned for error,"
entered its judgment as follows:
"Therefore it is considered that the judgment aforesaid for the
errors aforesaid be reversed, annulled, and altogether held for
naught, and that the said Globe Insurance Company be restored to
all things which it has lost by occasion of said judgment, and
recover against the said Cleveland Insurance Company its costs in
this behalf expended, taxed at $ 60.65."
"And thereupon it is ordered that a special mandate be sent down
to said district court to carry this judgment into execution. And
it is further ordered that this cause be remanded to the said
district court by writ of
procedendo, commanding the judge
of said court to proceed according to law to set aside its order
dismissing the petition of the said Globe Insurance Company, and
thereupon to adjudge the said Cleveland Insurance Company bankrupt,
as prayed for in and by said petition of said Globe Insurance
Company, and further to proceed in said matter in such manner
according to the laws of the land as he shall see proper, the said
writ of error to the contrary notwithstanding. "
Page 98 U. S. 369
To reverse this judgment the present writ of error has been sued
out of this Court by the Cleveland Insurance Company, and the Globe
Insurance Company now moves to dismiss the suit for want of
jurisdiction.
In
Sandusky v. National
Bank, 23 Wall. 289, and
Hill v. Thompson,
94 U. S. 322, it
was decided that the only remedy provided for the correction of
errors in a proceeding in the district court for an adjudication in
bankruptcy was such as could be had under the supervisory
jurisdiction of the circuit court, and as to that jurisdiction it
is well settled that the action of the circuit court is final and
not subject to review in this Court. The correctness of these
decisions is conceded, but the plaintiff in error claims that as
the circuit court could only take jurisdiction under its
supervisory power, and the case was actually taken to that court by
writ of error, this Court, under the rule laid down in
Stickney v.
Wilt, 23 Wall. 150, must reverse the judgment of
the circuit court and remand the cause with instructions to grant
the motion to dismiss the writ.
The section of the Revised Statutes which grants to the circuit
court its supervisory jurisdiction is as follows:
"SEC. 4986. The circuit court for each district shall have a
general superintendence and jurisdiction of all cases and questions
arising in the district court for such district when sitting as a
court in bankruptcy . . . and except when special provision is
otherwise made may, upon bill, petition, or other proper process of
any party aggrieved, hear and determine the case as in a court of
equity, and the powers and jurisdiction hereby granted may be
exercised either by the court in term time or in vacation by the
circuit justice or the circuit judge of the circuit."
No particular form of proceeding is required in order to take
the case to the circuit court for review under this jurisdiction.
It is sufficient if some "proper process" for that purpose is
employed, and in
Insurance Company v.
Comstock, 16 Wall. 259, which, like this, was a
suit in involuntary bankruptcy against an insurance company, this
Court held that a writ of error was "proper process" when the
questions to be reexamined arose upon a bill of exceptions taken at
a jury trial under
Page 98 U. S. 370
sec. 5026, Rev.Stat., to ascertain the alleged fact of
bankruptcy. In that case, the circuit court, upon its own motion,
dismissed the writ
"for want of jurisdiction, holding that a writ of error will not
lie in such a case to remove the record from the district court
into the circuit court for reexamination."
P.
83 U. S. 266.
In this Court, it was argued that abundant provision was made for a
review of such proceedings under the supervisory power of the
circuit court, and that a writ of error was improper process, but
we held it was clearly wrong to dismiss the writ, and although we
could not entertain jurisdiction of the cause, the circuit court
not having passed upon the merits, we sent it back with the
suggestion that the circuit court should, under the circumstances,
"grant a rehearing and reinstate the case, and proceed to decide
the questions presented on the bill of exceptions." It is true some
stress was laid upon the fact that there had been a trial by jury,
but the point was directly made and decided that the circuit court
could use a writ of error to bring the case up for review under its
general superintendence of bankruptcy proceedings. At that time we
had not decided that this Court could not reexamine such judgments
of the circuit court, and that question was purposely left open;
but Mr. Justice Clifford, in delivering the opinion, said,
"It is clear beyond doubt that the circuit court erred in
dismissing the writ of error for want of jurisdiction, as it was
the right of the excepting party to have the questions, if duly
presented by bill of exceptions, reexamined by the circuit
court."
Since it is now settled that this reexamination must be had
under the supervisory jurisdiction of that court, this language is
to be interpreted to mean that when a writ of error is employed as
"process" for the purposes of that jurisdiction, it will not
deprive the court of its power to proceed.
Looking to the writ in this case to see under what jurisdiction
it was issued, we find that it was in terms sent down to bring up
the record and proceedings in a certain matter pending in the
district court sitting in bankruptcy, wherein the Globe Insurance
Company was petitioning creditor and the Cleveland Insurance
Company was debtor. Thus it is apparent that the proceeding to be
reviewed was in bankruptcy, and not a suit
Page 98 U. S. 371
at law or in equity. The only jurisdiction, therefore,
appropriate to the relief which was asked was the supervisory
jurisdiction, and as there is nothing in the form of the writ or
otherwise to manifest a contrary intent, it will be presumed that
the court actually proceeded under that jurisdiction in all that
was done. It follows that the circuit court had jurisdiction, and
that its judgment is final. The proceeding was one which could only
be reexamined under the supervisory jurisdiction, and the process
employed to bring the case up was proper under the circumstances.
The record which went up carried not only the bill of exceptions,
but the entire proceedings below and all the testimony.
There is nothing in the case of
Stickney
v. Wilt, 23 Wall. 150, at all in conflict with
this. There, the suit in the district court was one in equity, and
not one in bankruptcy. Such suits can only be taken to the circuit
court for review by appeal. The case was, however, prosecuted in
the circuit court under its supervisory jurisdiction. This was
distinctly manifested throughout, and we held that as in that form
of proceeding the court had no jurisdiction whatever, we would
reverse its decree and remand the cause with instructions to
dismiss the petition for review.
Here, however, the circuit court had jurisdiction, and over its
judgment we have no control.
The motion to dismiss for want of jurisdiction will be granted,
and it is
So ordered.
Mr. JUSTICE CLIFFORD, dissenting.
Jurisdiction of the district courts as courts of bankruptcy
extends to all acts, matters, and things to be done under and in
virtue of the bankruptcy until the final distribution and
settlement of the estate of the bankrupt and the close of the
proceedings in bankruptcy. Rev.Stat., sec. 4972; 14 Stat. 518.
Circuit courts for each district of their respective circuits
have a general superintendence and jurisdiction of all cases and
questions arising in the district court for such district, when
sitting as a court of bankruptcy, which may be exercised by the
court in term time or in vacation by the circuit justice or
Page 98 U. S. 372
by the circuit judge of the circuit, and the provision is that
such circuit court, circuit justice, or circuit judge may, in term
time or vacation, except when special provision is otherwise made
upon bill, petition, or other proper process of the party
aggrieved, hear and determine the case as in a court of equity. 14
Stat. 518;
Morgan v.
Thornhill, 11 Wall. 65.
Apart from those two provisions, the third clause of the second
section provides that circuit courts shall also have concurrent
jurisdiction with the district courts of all cases at law or in
equity which may or shall be brought by the assignee in bankruptcy
against any person claiming an adverse interest, or by such person
against such assignee, touching any property or rights of property
of such bankrupt transferable to or vested in such assignee.
Smith v.
Mason, 14 Wall. 419;
Knight v. Cheney, 5
Nat.Bank.Reg. 305.
Petition in bankruptcy against the defendant company was filed
in the district court by the corporation plaintiffs, and they
prayed that the defendant company may be declared bankrupt, and
that a warrant may be issued to take possession of their estate.
Due proceedings followed, and the district court sitting without a
jury decided that the facts set forth in the petition were not
proved, and entered a decree dismissing the petition.
Instead of petitioning the circuit court for a revision of the
ruling and decision of the district court, under the first clause
of the second section of the Bankrupt Act, as the petitioners
should have done, they filed a bill of exceptions as in action at
law, and the same was signed and sealed by the district judge as in
the trial of an information for a seizure on land under the ninth
section of the Judiciary Act.
Application was then made by the original petitioners to the
circuit court for a writ of error to the district court, which was
granted, and the cause was removed into the circuit court just as
when an action at law tried before a jury is removed from the court
of original jurisdiction into an appellate tribunal pursuant to the
common law bill of exceptions, except that the bill of exceptions
contains the court's findings of fact as in common law cases where
a jury is waived.
When the cause was entered and the transcript filed in the
Page 98 U. S. 373
circuit court, the defendant company appeared and moved to
dismiss the writ of error, for the following reasons:
1. Because the proceeding being a petition in involuntary
bankruptcy, where the bankrupt did not demand a jury and the
hearing had been by the district court, the case is not removable
into the circuit court by writ of error, but by petition for review
or other proper process under the first clause of the second
section of the Bankrupt Act.
2. Because the debt or damage claimed in the petition does not
amount to $500.
3. Because the writ of error was not sued out within ten days
after the entry of the decision in the district court.
Hearing was had; and the circuit court overruled the motion to
dismiss the writ of error and reversed the decree of the district
court with costs and ordered that a special mandate be sent down to
the district court directing that court to carry the judgment of
the circuit court into execution and to adjudge the defendant
company bankrupt, as prayed in the petition, and to proceed in the
matter according to law. Exceptions were filed by the defendant
company, and they sued out the present writ of error and removed
the cause into this Court.
Since the cause has been entered here, the plaintiff company has
filed a motion to dismiss the writ of error upon the ground that no
appeal lies to this Court from a judgment or decree of the circuit
court exercising the supervisory jurisdiction conferred upon it by
the first clause of the second section of the Bankrupt Act.
Morgan v.
Thornhill, 11 Wall. 65;
Smith v.
Mason, 14 Wall. 419.
Both of these cases affirm that rule beyond all doubt, and the
same rule is confirmed by every subsequent case upon the same
subject, but the difficulty is that the circuit court did not
exercise the supervisory jurisdiction which the first section of
the Bankrupt Act conferred. Jurisdiction under that clause of the
second section of the act is usually exercised in pursuance of a
petition for revision, and it must be exercised in some mode of
proceeding which will give the defending party the right to answer
the allegations of the pleading, as in a bill of complaint, as is
plainly to be inferred from the language of the clause, else the
hearing would be a mockery, as it would be practically
ex
parte.
Page 98 U. S. 374
Circuit courts are not courts of bankruptcy, nor have they power
to reexamine or review the rulings, decisions, or judgments of the
district courts sitting in bankruptcy, except in the cases and in
the manner provided by the Bankrupt Act; nor is it pretended that
the Bankrupt Act gives the circuit court any power whatever in a
case like the present, to reexamine the decision or judgment of the
district court by a writ of error.
Suppose the proceedings in the circuit court were in every
respect erroneous, leaving the losing party without remedy unless
the error can be corrected here, still it is insisted that this
Court is without the power to grant relief. Cases wrongly brought
up, it may be admitted, should as a general rule be dismissed by
the appellate tribunal; but a necessary exception exists to that
rule where the effect of a judgment or decree of dismissal will be
to give full operation to an irregular and erroneous judgment or
decree of the subordinate court in a case where the judgment or
decree of such a court is rendered without jurisdiction, or in
violation of some legal or constitutional right of the losing
party.
Rules of practice are established to promote the ends of
justice, and where it appears that a given rule will have the
opposite effect from that which it was intended to accomplish,
courts of justice have never hesitated to establish an exception to
it. Appellate courts, where there is no defect in bringing up a
cause, usually affirm or reverse the judgment or decree of the
court below; but cases occasionally arise where the proceedings of
the subordinate court are so unusual and irregular that the
appellate court can neither reverse nor affirm the merits of the
case without doing great injustice, and in such cases the appellate
court never hesitates to remand the case for a new trial or
rehearing, first reversing the judgment or decree in order to open
the case for that purpose.
Suydam v.
Williamson, 20 How. 427.
Where, as in a special verdict, the essential facts are not
distinctly found by the jury, although there is sufficient evidence
to establish them, the court will not render a judgment upon such
an imperfect special finding, but will remand the cause to the
court below with directions to award a new venire.
Page 98 U. S. 375
Barnes v.
Williams, 11 Wheat. 415;
Graham v.
Bayne, 18 How. 60.
So where the circumstances disclosed in the record rendered it
proper, in the view of the Court, to remand the case for a further
hearing, the Court decided to reverse the judgment, in order that
the rehearing might be granted.
United
States v. Cambuston, 20 How. 59.
Admiralty cases have more than once been appealed to this Court
in which it appeared that the circuit court had no jurisdiction of
the case, in consequence of irregularities in the district court,
and in such cases it has been held by this Court that it is the
regular course to reverse the decree of the circuit court, and to
direct the circuit court to remand the cause to the district court
for further proceedings.
Montgomery v.
Anderson, 21 How. 386;
Mordecai
v. Lindsey, 19
id. 199;
United
States v. Galbraith, 22 How. 89.
Difficulties of the kind frequently occur in cases of seizures,
as the district courts have often failed to distinguish between
seizures on land and seizures on navigable waters. Mistakes of a
like kind have also been made in libels of information under the
confiscation acts. Where the seizure is on land, the rule is that
the case is triable according to the course of the common law; but
seizures, when made on waters which are navigable from the sea by
vessels of ten or more tons burthen, are exclusively cognizable in
the admiralty, subject to appeal to the circuit courts. Dunlap,
Practice, 116;
Cross v. United States, 1 Gall. 26;
Confiscation
Cases, 7 Wall. 454; 3 Greenl.Evid., sec. 396; 1
Kent Com. (12th ed.) 304.
Want of jurisdiction in the court below, however, does not
prevent this Court from assuming jurisdiction on appeal for the
purpose of reversing the decree rendered by the circuit court in
order to vacate any unwarranted proceedings necessarily standing in
the way of the proper proceeding in a case where, in the judgment
of this Court, other proceedings ought to take place in consequence
of the irregularity in either of the subordinate courts. Where the
court below has no jurisdiction of the case in any form of
proceeding, the regular course is to direct the cause to be
dismissed, if the judgment or decree of the lower court is for the
defendant or respondent; but if the
Page 98 U. S. 376
judgment or decree is for the plaintiff or libellant, the Court
here will reverse the judgment or decree and remand the cause with
proper directions, as for example to reverse the decree of the
district court in a case where that court proceeded irregularly or
without jurisdiction and to remit the cause to the district court
in order that the cause may be dismissed in the court where the
error commenced; or this Court will reverse the judgment or decree
of the circuit court and remand the cause with directions to
dismiss the case or to grant a new trial or rehearing, with or
without leave to amend the pleadings, according to the
circumstances of the case and as justice may require.
Morris'
Cotton, 8 Wall. 507;
Mail
Company v. Flanders, 12 Wall. 130.
Nor did those decisions announce any new rule of practice, as
this Court had in repeated instances deckled in the same way before
that time.
Union Insurance Co. v. United
States, 6 Wall. 759;
Amstrong's
Foundry, 6 Wall. 766.
Precisely the same question was presented in the case of
United States v.
Hart, 6 Wall. 722, where this Court decided that
the proper disposition of the case was to reverse the decree and
remand the cause to the court below with directions to enter a
decree remitting the case to the district court, that the case
might be tried on the common law side with a jury, it appearing in
that case that the seizure had been made on land and not on waters
navigable from the sea.
The Brig Caroline v. United
States, 7 Cranch 496;
The
Sarah, 8 Wheat. 391.
Unless the practice was as explained, great injustice would be
done in all cases where the judgment or decree in one or both of
the subordinate courts is erroneous and in favor of the party
instituting the suit, as he would obtain the full benefit of a
judgment or decree rendered in his favor by a court which had no
jurisdiction to hear and determine the controversy. Common justice
demands a strict adherence to this practice, which requires that
this Court in all such cases will reverse the judgment or decree of
the lower court and remand the cause with proper directions either
to dismiss the case or allow the pleadings to be amended, or grant
a new trial, or direct that the cause be remitted to the district
court, as the circumstances
Page 98 U. S. 377
of the case may require, in order that justice may be
administered according to law.
Decided cases to that effect are numerous and decisive, showing
that the rule must be regarded as founded in the settled practice
of the Court.
Beyond question the general rule is that where the circuit court
is without jurisdiction, it is irregular to make any order in the
cause except to dismiss the suit, but that rule does not apply to
the action of the Court in setting aside such orders as had been
improperly made before the want of jurisdiction was discovered,
especially if it appears that the effect of the dismissal would be
to leave the moving party in possession of judgment rendered
without jurisdiction or authority of law.
Mail
Company v. Flanders, 12 Wall. 130.
In such cases, the writ of error or appeal gives jurisdiction
not only to dismiss the appeal, but also to remove all the
hindrances to justice between the parties that have been created by
the irregular acts of the subordinate court and which were
performed without jurisdiction or in violation of legal authority.
Armstrong's
Foundry, 6 Wall. 766.
Were it not so, the plaintiff would obtain the full benefit of
the judgment or decree in the case rendered in his favor by a court
which had no jurisdiction to hear and determine the controversy.
Morris'
Cotton, 8 Wall. 507.
Nor is it any answer of a satisfactory character to that obvious
principle of justice to say that the circuit court would have had
jurisdiction of the case if the party had petitioned the circuit
court under the first clause of the second section of the Bankrupt
Act, instead of resorting to the bill of exceptions and the common
law writ of error, as the conclusive reply to that suggestion is
that the case before the Court was removed by a writ of error from
the district court to the circuit court, and every lawyer knows
that the circuit court could not acquire any jurisdiction by that
mode of proceeding to render any valid decree in such a case.
Suppose that is so, then it follows that the dismissal of the
writ of error without reversing the decree of the circuit court
will leave the defendant company adjudged bankrupt by a court which
had no jurisdiction of the case, and without any
Page 98 U. S. 378
remedy on the part of the company to avoid that erroneous
decree.
Argument to verify that proposition is quite unnecessary, as the
statement of the case shows that the circuit court granted a writ
of error to the district court, as in an action at common law, and
having removed the cause from the district court, sitting as a
court of bankruptcy, into the circuit court, reversed the decree of
the district court dismissing the petition in bankruptcy, and
issued a
procedendo directing the district court to grant
the prayer of the petition, all of which was done as in an action
at law, and the record shows that the circuit court sent down its
mandate to the district court, as in an action at law, directing
the district court to execute the judgment rendered by the circuit
court.
None of these proceedings are controverted, nor can they be;
from which it follows that when the judgment of the court
dismissing the present writ of error is carried into effect, the
defendant company will stand adjudged bankrupt by the circuit
court, which had no more power to render such a judgment than a
state justice of the peace, as every lawyer knows that the circuit
court has no other jurisdiction than what is conferred by an act of
Congress, and that the Bankrupt Act confers no jurisdiction upon
the circuit courts, in that mode of proceeding, to reverse such a
decree of the district court.
Cases wrongly brought up, it may be admitted, should as a
general rule be dismissed by the appellate tribunal, but a
necessary exception exists to that rule where the consequence of a
dismissal will be to give full effect to an irregular and erroneous
decree of the subordinate court in a case where the court was
without jurisdiction and acted in violation of some legal or
constitutional right of the party against whom the decree was
entered.
Serious embarrassment often arises in such cases where it
appears that the subordinate court is without jurisdiction, but
that difficulty does not prevent the court here from assuming
jurisdiction under the writ of error or appeal for the purpose of
reversing the judgment or decree rendered in the subordinate court,
in order to vacate the same, when rendered or passed
Page 98 U. S. 379
without authority of law.
The Brig Caroline v. United
States, 7 Cranch 496;
The
Sarah, 8 Wheat. 391.
All other arguments failing, the attempt is made to show that
certain remarks of the Court in the case of
Insurance
Company v. Comstock, 16 Wall. 258, support the
proposed judgment of the court in the present case; but it is clear
that no inference of the kind can properly be drawn from the
opinion of the Court in that case for the plain reason that the
Court held that mandamus was the proper remedy in that case, and
dismissed the writ of error solely upon that ground.
Prior to certain more recent decisions, it was an unsettled
question whether or not a writ of error would lie from the circuit
court to the district court where, in a proceeding in bankruptcy,
the bankrupt demanded a trial by jury. Exceptions were taken in
that case where the proceeding was in bankruptcy, and the circuit
court refused to decide the question. Hearing was had here, and
this Court was of the opinion that mandamus was the proper remedy
of the party, but did not deem it necessary to issue the writ, as
it was suggested that the circuit court would at once conform to
the views of this Court. Since that time, it has been decided that
a writ of error will not lie in such a case, which removes all
doubt upon the subject and every pretense of inconsistency in our
former decisions.
Wiswall v. Campbell, 93 U. S.
347;
Hill v. Thompson, 94 U. S.
322.
Conclusive support to the proposition that nothing is to be
inferred from the case of
Insurance Company v. Comstock to
sustain the theory of the Court in the present case is found in the
subsequent decision of the Court, which is reported in the same
volume.
United States v.
Huckabee, 16 Wall. 414. In that case, the court say
that usually where a court has no jurisdiction of a case, the
correct practice is to dismiss the suit, but a different rule
necessarily prevails in an appellate court in cases where the
subordinate court was without jurisdiction and has given a judgment
or decree for the plaintiff, or improperly decreed affirmative
relief to a libellant. In such cases, the judgment or decree in the
court below must be reversed, else the party which prevailed there
will have the benefit of the judgment or decree though rendered by
a court
Page 98 U. S. 380
which had no authority to hear and determine the matter in
controversy.
United States v. Huckabee, supra; 86 U.
S. Robinson, 19 Wall. 274.
Two cases are also reported in the twenty-third volume of
Wallace's Reports to the same effect, the opinion of the Court in
the last of which was given by the present Chief Justice. In the
first case, the Court said that where the court below has no
jurisdiction of the case in any form of proceeding, the regular
course, if the judgment or decree is for the defendant or
respondent, is to direct the cause to be dismissed; but if the
judgment or decree is for the plaintiff or petitioner, the Court
here will reverse the judgment or decree and remand the cause with
proper directions, which, in the case supposed, must be to dismiss
the writ, libel, or petition, as the subordinate court cannot
properly hear and determine the matter in controversy.
Viewed in the light of these suggestions, it is clear that the
decree of the circuit court should be reversed, and inasmuch as
that court has no jurisdiction of the subject matter in that form
of proceeding, the directions should be that the writ of error be
dismissed.
Instead of a writ of error, an appeal was taken in the second
case, in which the Chief Justice said that in order to sustain the
jurisdiction of the circuit court in such a case, it must be a case
in equity arising under and authorized by the Bankrupt Act, that a
proceeding in bankruptcy from the time of its commencement by the
filing of a petition to obtain the benefit of the act, until the
final settlement of the estate of the bankrupt, is but one suit,
and that the district court, for all the purposes of its bankruptcy
jurisdiction, is always open, and that the only remedy for the
correction of errors in such cases is to be found in the
supervisory jurisdiction of the circuit courts under the provisions
of the first clause of the second section of the Bankrupt Act.
Corresponding views are expressed by the Chief Justice in two
later cases, both of which are reported in the regular series of
reports of the Supreme Court.
Wiswall v. Campbell,
93 U. S. 348;
Hill v. Thompson, 94 U. S. 322. Both
of these cases show to a demonstration that the circuit court, in
reversing the decree of the district court, acted without
jurisdiction,
Page 98 U. S. 381
and yet the effect of the judgment of the Court in this case is
to leave the judgment of the circuit court, rendered without
jurisdiction, in full force, which, in my judgment, is error.
Six times, at least, the question in the case has been decided
by this Court, without a dissent, which would seem to be a
sufficient justification of a member of the Court who concurred in
all of the decisions for adhering to the rule which those cases
prescribe. For these reasons, I am of the opinion that the decree
of the circuit court should be reversed, and that the case should
be remanded to the circuit court with directions to that court to
dismiss the writ of error sued out from that court to the district
court.