The power of this Court to issue a writ of mandamus to an
inferior court is well settled, but, as a general rule, it only
lies where there is no other adequate remedy, and cannot be availed
of as a writ of error.
The objection to the jurisdiction in the circuit court,
presented by filing the demurrer for the special and single purpose
of raising it, would not be waived by answering to the merits upon
the demurrer's being overruled.
The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This is an application for leave to file a petition for a writ
of mandamus. The petition states that the Atlantic City Railroad
Company is a corporation created, organized, and existing under the
laws of the State of New Jersey; that May 20, 1896, a bill in
equity was filed by the Union Switch & Signal Company and the
Fidelity Title & Trust Company, corporations organized and
existing under the laws of Pennsylvania, against petitioner and
Joseph S. Harris, its president, defendants, in the United States
Circuit Court for the Eastern District of Pennsylvania, for the
alleged infringement of certain letters patent for improvements in
electrical signaling apparatus; that July 6, 1896, petitioner
appeared specially for the purpose of objecting to the jurisdiction
of the court, and on August 3 filed a demurrer raising the
question, and on the same day defendant Harris also filed a
demurrer to the bill of complaint; that petitioner's demurrer was
overruled, and defendant Harris was granted permission to withdraw
his demurrer, if he so elected; that, by virtue of the order
overruling the demurrer, petitioner is required,
"as it is advised and believes, to enter a general appearance by
the 28th day of December, 1896, and
Page 164 U. S. 634
file an answer by the 4th day of January, 1897, or within other
reasonable time fixed by the court, or an interlocutory decree will
be issued against it directing the issuance of an injunction
against it and awarding damages and costs and an accounting;"
that petitioner has a defense on the merits which is an adequate
and complete answer to the bill; "that it is advised and believes
that it has no adequate remedy by appeal;" and
"that if it enters a general appearance or files an answer in
said case, it will thereby and by that act and fact forever waive
all objection to the jurisdiction of said court, and this Court
will be forever ousted of its jurisdiction to determine the
jurisdiction of said court in said case, and that accordingly your
petitioner has no adequate remedy unless this Court will grant the
mandamus as herein petitioned."
The prayer was for a writ of mandamus directed to the judges of
the Circuit Court of the United States for the Eastern District of
Pennsylvania commanding them to dismiss "as against your
petitioner" the bill of complaint in the suit, and
"to vacate, as against your petitioner, the said order of
November 24, 1896, overruling the said demurrer of your petitioner,
and to enter a decree to that effect, all as prayed for."
Copies of the bill of complaint, the special appearance, the
demurrer, and of the order overruling the demurrer and granting
leave to withdraw the demurrer of Harris without prejudice were
annexed. The bill of complaint showed complainants to be
corporations of Pennsylvania and citizens thereof, the defendant
the Atlantic City Railroad Company to be a corporation and citizen
of New Jersey, having its principal office at Philadelphia, and
defendant Harris, its president, to be a citizen of
Pennsylvania.
Petitioner's demurrer showed for cause
"that it appears upon the face of said bill of complaint that
this Court has no jurisdiction over the person of this defendant,
the Atlantic City Railroad Company, as it appears upon the face of
the said bill of complaint that this defendant is not an inhabitant
or citizen of the Eastern District of Pennsylvania or the State
Page 164 U. S. 635
of Pennsylvania, but is an inhabitant and citizen of the
District and State of New Jersey."
The general power of the court to issue a writ of mandamus to an
inferior court to take jurisdiction of a cause when it refuses to
do so is settled by a long train of decisions, but mandamus only
lies, as a general rule, where there is no other adequate remedy,
nor can it be availed of as a writ of error.
In re Pennsylvania
Co., 137 U. S. 451;
In re Morrison, 147 U. S. 14;
Ex Parte Railway Company, 103 U.
S. 794;
Ex Parte Baltimore & Ohio Railroad
Co., 108 U. S. 566.
In
In re Hohorst, 150 U. S. 653, the
bill was filed in the Circuit Court of the United States for the
Southern District of New York against a corporation and certain
other defendants, and was dismissed against the corporation for
want of jurisdiction. From that order complainant took an appeal to
this Court, which was dismissed for want of jurisdiction because
the order, not disposing of the case as to all the defendants, was
not a final decree from which an appeal would lie.
148 U. S. 148 U.S.
262. Thereupon an application was made to this Court for leave to
file a petition for a writ of mandamus to the judges of the circuit
court to take jurisdiction, and to proceed against the company in
the suit. Leave was granted, and a rule to show cause entered
thereon, upon the return to which the writ of mandamus was
awarded.
In this case, however, the circuit court entertained
jurisdiction, and the petitioner has its remedy by appeal if a
decree should pass against it. The objection to the jurisdiction
presented by filing the demurrer, for the special and single
purpose of raising it, would not be waived by answering to the
merits upon the demurrer's being overruled.
Southern Pacific
Company v. Denton, 146 U. S. 202.
To direct the exercise of jurisdiction is quite different from a
mandate not to do so, and we think we should not interpose at this
stage of the case in the manner desired.
Leave denied.