The judgment of the Supreme Court of a state reversing that of
the court below, and remanding the case for further proceedings to
be had therein, is not a final judgment, nor is this Court at
liberty to consider whether such judgment was an actual final
disposition of the merits of the case. The face of the judgment is
the test of its finality.
This was an action brought originally in the Circuit Court for
Greene county, Missouri, by the Haseltines against the Central
National Bank, to recover double the amount of certain alleged
usurious interest paid by the plaintiffs to defendant, and which
they sought to recover under the second clause of Rev.Stat. sec.
5198, providing that
"in case the greater rate of interest has been paid, the person
by whom it has been paid, or his legal representatives, may recover
back, in an action in the nature of an action of debt, twice the
amount of the interest thus paid from the association taking or
receiving the same."
The trial court rendered judgment in favor of the plaintiffs for
$831.70. From this judgment defendant appealed to the supreme court
of the state, which reversed the judgment of the trial court upon
the ground that the plaintiffs had neither paid nor tendered the
principal sum due, and remanded the cause "for further proceedings
to be had therein, in conformity with the opinion of this Court
herein delivered."
Defendant moved to dismiss the writ of error upon the ground
that this was not a final judgment.
Page 183 U. S. 131
MR. JUSTICE BROWN delivered the opinion of the Court.
The motion to dismiss must be granted. We have frequently held
that a judgment reversing that of the court below, and remanding
the case for further proceedings, is not one to which a writ of
error will lie. The case of
Mower v. Fletcher,
114 U. S. 127, is
not in point, as the judgment of the supreme court of the state
remanded that case to the inferior court, with an order to enter a
specified judgment, nothing being left to the judicial discretion
of the court below. A like ruling was made in
Atherton v.
Fowler, 91 U. S. 143, and
Commissioners of Tippecanoe County v. Lucas, 93 U. S.
108.
While the judgment may dispose of the case as presented, it is
impossible to anticipate its ultimate disposition. It may be
voluntarily discontinued, or it may happen that the defeated party
may amend his pleading by supplying some discovered defect, and go
to trial upon new evidence. To determine whether, in a particular
case, this may or may not be done might involve an examination, not
only of the record, but even of the evidence in the court of
original jurisdiction, and lead to inquiries with regard to the
actual final disposition of the case by the supreme court, which it
might be difficult to answer. We have therefore always made the
face of the judgment the test of its finality, and refused to
inquire whether, in case of a new trial, the defeated party would
stand in a position to make a better case. The plaintiffs in the
case under consideration could have secured an immediate review by
this Court, if the court as a part of its judgment of reversal had
ordered the circuit court to dismiss their petition, when, under
Mower v. Fletcher, they might have sued out a writ of
error at once.
McComb v. Knox County Commissioners, 91 U. S.
1, is a case in point. That was a writ of error to the
Court of Common Pleas of the State of Ohio. The case had been taken
to the supreme court of the state, where the judgment of the common
pleas was reversed for error in sustaining a demurrer to the
replies, and overruling that to the answer. Upon suggestion by
defendant that he might ask leave to amend his answer, the case was
remanded "for further proceedings according to
Page 183 U. S. 132
law." Upon the mandate's being filed, defendant did not ask
leave to amend his answer, but elected to rely upon his defense
already made. Thereupon the court gave judgment against him, and he
sued out a writ of error from this Court. We held that the judgment
of the supreme court, being one of reversal only, was not final;
that so far from putting an end to the litigation it purposely left
it open; that the law of the case upon the pleadings as they stood
was settled, but ample power was left in the common pleas to permit
the parties to make a new case by amendment; that the final
judgment was that of the common pleas; that
"it may have been the necessary result of the decision . . . of
the question presented for its determination; but it is
nonetheless, on that account, the act of the common pleas,"
and was, when rendered, open to review by the supreme court. The
writ was dismissed. A similar case is that of
Great Western
Telegraph Co. v. Burnham, 162 U. S. 339.
This writ of error is therefore dismissed upon the authority of
Brown v. Union
Bank, 4 How. 465;
Pepper v.
Dunlap, 5 How. 51;
Tracy v.
Holcombe, 24 How. 426;
Moore v.
Robbins, 18 Wall. 588;
St. Clair
County v. Lovingston, 18 Wall. 628;
Parcels v.
Johnson, 20 Wall. 653;
Baker v. White,
92 U. S. 176;
Bostwick v. Brinkerhoff, 106 U. S. 3;
Johnson v. Keith, 117 U. S. 199.
Dismissed.
