The power of this Court to issue writs of certiorari to the
circuit court of appeals is not limited to the provisions of the
Court of Appeals Act. It may issue them under § 716, Rev.Stat.
In re Chetwood, 165 U. S. 443;
Whitney v. Dick, 202 U. S. 132.
Under § 716, Rev.Stat., and § 12 of the Court of Appeals Act,
the circuit court of appeals has authority to issue writs of
scire facias and all writs not specifically provided for
by statute and necessary for the exercise of the court's
jurisdiction, and agreeable to the usages and principles of
law.
Page 217 U. S. 269
Where a case is within the appellate jurisdiction of the higher
court, a writ of mandamus may issue in aid of the appellate
jurisdiction which might otherwise be defeated by the unauthorized
action of the court below, and so
held that the circuit
court of appeals may issue mandamus to compel the circuit court to
vacate a stay pending proceedings in the state court to determine,
and thus render
res judicata questions within the
jurisdiction of the circuit court and involved in the action in
which the stay was granted.
The constitutional grant of chancery jurisdiction to federal
courts in cases where diverse citizenship exists, to determine
interests in estates, is the same as that possessed by the chancery
courts of England, and it cannot be impaired by subsequent state
legislation creating courts of probate.
Waterman v.
Canal-Louisiana Bank, 215 U. S. 33.
A federal court cannot abandon its jurisdiction already properly
obtained of a suit and turn the matter over for adjudication to the
state court.
Chicot County v. Sherwood, 148 U.
S. 529.
The pendency of a suit in the state court is no bar to
proceedings concerning the same matter in a federal court having
jurisdiction thereover.
The judgment in a suit between claimants of an estate and the
administrator does not conclude the rights of the state claiming an
escheat so long as it is not a party and has not been allowed to
intervene on its own behalf.
On certiorari this Court will consider only the record in the
circuit court of appeals as certified here in return to the writ,
and it decides the case solely as presented in such return.
In this case,
held that the circuit court of appeals
should have issued an alternative writ of mandamus to, or order to
show cause why, the circuit judge should not vacate a stay in an
action brought against an administrator by one claiming to be an
heir while and until proceedings brought by the state for escheat
in the state court should be finally determined.
The facts are stated in the opinion.
Page 217 U. S. 274
MR. JUSTICE DAY delivered the opinion of the Court.
This case comes here upon a writ of certiorari to the Circuit
Court of Appeals for the Eighth Circuit. In that court, McClellan
and others, petitioners, filed a petition for a writ of mandamus
against the United States district judge for the District of South
Dakota praying a writ of mandamus to said judge, sitting as a judge
of the circuit court of said district, commanding him to set aside
and vacate certain orders staying proceedings in an action pending
in the
Page 217 U. S. 275
circuit court, and to proceed to try and determine the suit in
the usual course of procedure, without regard to the pendency of
certain proceedings, to be hereinafter referred to, in the courts
of the State of South Dakota. The circuit court of appeals, upon
the petition for a writ of mandamus being presented to it, denied
the prayer thereof and dismissed it. Thereafter this Court granted
the writ of certiorari.
From the transcript of the record of the case in the circuit
court of appeals, it appears that petitioners and others, on the
eighth day of September, 1908, commenced suit against George T.
Blackman, special administrator of the estate of John C. McClellan,
deceased, and others, in the Circuit Court of the United States for
the District of South Dakota, in which suit complainants were
citizens of states other than South Dakota, and respondent, George
T. Blackman, a citizen of South Dakota, was sued as special
administrator of the estate of John C. McClellan, deceased. The
bill set up that complainants were the sole surviving heirs at law
and next of kin of John C. McClellan, deceased, who died on or
about the thirty-first of August, 1899, intestate, in the City of
Sioux Falls, County of Minnehaha, South Dakota, leaving an estate
of real and personal property of the value of about $33,000. The
bill sets out the issuing of letters of administration to one
William Van Eps, who held possession of the estate until July 12,
1906, when he died; that. subsequently thereto. special letters of
administration were issued to George T. Blackman, the respondent.
The bill further avers that there were in possession of said
Blackman, as said special administrator, belonging to said estate,
assets in excess of the sum of $35,000, consisting of real estate,
cash on hand, etc. The bill avers that there were no claims against
the estate, and that all the creditors of John C. McClellan had
been paid, and that the estate was ready for distribution according
to the laws of South Dakota. The bill further prayed that the
complainants might be adjudicated the sole heirs at law and next of
kin of said decedent, and entitled to
Page 217 U. S. 276
inherit the estate, real and personal, and that the said
Blackman render a just and true account of the property in his
hands belonging to said estate, and, after deducting his lawful
fees and expenses, be required to distribute the same in certain
proportions to the complainants, as heirs at law of the decedent.
The defendant Blackman appeared and answered the bill, admitting
certain allegations thereof, and denying others and demanding proof
thereof, and stating that he held the property described in the
bill of complaint subject to the order of the court. A general
replication was filed to the answer, and thereupon it appears that
the State of South Dakota came, by its attorney general and its
attorney for the County of Minnehaha, and special counsel, and
asked leave to intervene in the case, and, upon hearing, the
circuit court of the United States overruled the motion, and
ordered that the further prosecution of the action then pending
before it be stayed for the period of ninety days, for the purpose
of allowing the State of South Dakota to commence a proper action
or proceeding to establish its title and interest in and to the
property in the estate of the decedent, and that, in the event that
such action be commenced within that time, then the pending action
to be stayed until the determination of such action brought by the
State of South Dakota. Afterwards, the complainants filed an
application for the vacation of the orders staying the prosecution
of their suit until the determination of the suit in the state
court, but the same was denied, and thereafter the petition for
mandamus in the circuit court of appeals was filed, with the result
already stated.
The matters we have stated constitute the entire record before
the circuit court of appeals. Upon that record, it appears that the
circuit court of the United States, having an action before it to
determine the interest of the complainants in the estate of John C.
McClellan, upon which issue had been joined, upon application of
the State of South Dakota refused to permit it to intervene in the
case to set
Page 217 U. S. 277
up its right and title to the property in the estate of the
decedent, upon the claim that he died without legal heirs, and
stayed the proceedings in the case before it until the State of
South Dakota could bring an action in the state court for the
purpose of determining such rights, and afterwards, it appearing
that the state had commenced such action against all persons having
or claiming a right, title, or interest therein, stayed the pending
action until the determination of the action in the state
court.
It is first objected on behalf of the respondent herein that
this is not a case in which this Court has the authority to issue
the writ of certiorari. It is contended that the application for
the writ in this case was under the Act of March 3, 1891, 26 Stat.
826, c. 517, and that the right to grant writs of certiorari to the
circuit court of appeals is limited by the act to certain cases
made final in the circuit court of appeals, and that, by § 10 of
the Court of Appeals Act, it is declared that, whenever, on appeal,
writ of error or otherwise, a case coming from the circuit court of
appeals shall be reviewed and determined in the Supreme Court, it
shall be remanded to the proper district or circuit court for
further proceedings in pursuance of such determination.
These provisions, it is contended, show that a writ of
certiorari is not warranted in this case, it being an original
application in mandamus in the court of appeals, and the
jurisdiction in the circuit court not depending upon the opposite
parties to the suit being citizens of different states, and
therefore the judgment not final in the circuit court of appeals,
nor could the case be remanded to the proper district or circuit
court, as it was an original proceeding in mandamus in the circuit
court of appeals. But the power of this Court to issue writs of
certiorari is not limited to the Court of Appeals Act. Section 716
of the Revised Statutes of the United States provides:
"The Supreme Court and the circuit and district courts shall
have power to issue writs of
scire facias. They shall
Page 217 U. S. 278
also have power to issue all writs not specifically provided for
by statute which may be necessary for the exercise of their
respective jurisdictions and agreeable to the usages and principles
of law."
Of this section it was said in
In re Chetwood,
165 U. S. 443,
165 U. S.
461:
"By section 14 of the Judiciary Act of September 24, 1789, 1
Stat. 81, c. 20, carried forward as § 716 of the Revised Statutes,
this Court and the circuit and district courts of the United States
were empowered by Congress to issue all writs, not specifically
provided for by statute, which may be agreeable to the usages and
principles of law, and, under this provision, we can undoubtedly
issue writs of certiorari in all proper cases.
Amer.
Construction Co. v. Jacksonville Railway, 148 U. S.
372,
148 U. S. 380. And although,
as observed in that case, this writ has not been issued as freely
by this Court as by the Court of Queen's Bench in England, and,
prior to the Act of March 3, 1891 c. 517, 26 Stat. 826, had been
ordinarily used as an auxiliary process merely, yet, whenever the
circumstances imperatively demand that form of interposition, the
writ may be allowed, as at common law, to correct excesses of
jurisdiction, and in furtherance of justice. Tidd's Prac. 398;
Bacon's Abr. 'Certiorari.'"
In
Whitney v. Dick, 202 U. S. 132, a
writ of certiorari was granted to the Circuit Court of Appeals for
the Ninth Circuit to review the judgment of that court where an
original application had been made for the writ of habeas corpus
and a writ of certiorari in that court. This Court held, upon the
question of jurisdiction, that there could be no appeal from the
circuit court of appeals in such a case, but that a writ of
certiorari might issue to bring the case here from the circuit
court of appeals, upon the authority of
In re Chetwood,
supra. The case at bar being a petition for mandamus, there is
no amount in controversy, and consequently there could be no appeal
to this Court; and, as in
Whitney v. Dick, supra, the
judgment of the circuit court of appeals was not final because
Page 217 U. S. 279
of the diversity of citizenship in the court below, and,
consequently, certiorari would not issue under the Act of 1891. In
Whitney v. Dick, the case was remanded to the circuit
court of appeals with instructions to quash the writ of certiorari
issued by that court, and to dismiss the petition for habeas
corpus.
In the present case, we have no doubt of the authority of this
Court to issue the writ of certiorari, under § 716 of the Revised
Statutes of the United States, as construed and applied in the
cases just cited --
In re Chetwood, 165 U.S., and
Whitney v. Dick, 202 U.S.,
supra. The suggestion,
therefore, that this case should be dismissed for want of power in
this Court to grant the writ of certiorari cannot be entertained.
While the power to grant this writ will be sparingly used, as has
been frequently declared by this Court, we should be slow to reach
a conclusion which would deprive the court of the power to issue
the writ in proper cases to review the action of the federal courts
inferior in jurisdiction to this Court.
It is further objected that the circuit court of appeals had no
jurisdiction to issue the writ of mandamus, as that writ can only
be issued in aid of the appellate jurisdiction of the circuit court
of appeals, and, it is contended, as that court had no jurisdiction
of the suit when the application for mandamus was filed, it ought
to have been dismissed. Section 12 of the Court of Appeals Act
declares that the circuit court of appeals shall have the powers
specified in § 716 of the Revised Statutes of the United States.
That section we have already had occasion to quote, and when read
in connection with § 12 of the Court of Appeals Act, it gives to
the circuit court of appeals the authority, as this Court has, to
issue writs of
scire facias, and all writs not specially
provided for by statute and necessary for the exercise of the
court's jurisdiction and agreeable to the usages and principles of
law.
In this case, it appears that the original action commenced in
the circuit court of the United States might have been taken on
appeal to the circuit court of appeals. The suit involved over
$2,000 in amount, and was between citizens of
Page 217 U. S. 280
different states. There are not wanting decisions in the federal
courts holding different views as to the right to issue such writs
as are involved in this case before the appellate court has
actually obtained jurisdiction of the case. There are expressions
in opinions of this Court to the effect that such writs issue in
aid of a jurisdiction actually acquired. But we think it the true
rule that, where a case is within the appellate jurisdiction of the
higher court, a writ of mandamus may issue in aid of the appellate
jurisdiction which might otherwise be defeated by the unauthorized
action of the court below. This rule was distinctly stated and the
previous cases referred to, in
Insurance Company v.
Comstock, 16 Wall. 258,
83 U. S. 270.
In that case, the rule was recognized that this Court had the power
to issue the writ of mandamus to compel the circuit courts to
proceed to final judgment in order that this Court may exercise the
jurisdiction of review given by law. In that case, the Court
said:
"Repeated decisions of this Court have established the rule that
this Court has power to issue a mandamus in the exercise of its
appellate jurisdiction, and that the writ will lie in a proper case
to direct a subordinate federal court to decide a pending
cause."
In
Ex Parte
Bradstreet, 7 Pet. 647, the same rule was laid down
by Chief Justice Marshall, speaking for the Court, requiring a
federal court of inferior jurisdiction to reinstate a case and to
proceed to try and adjudicate the same.
And see In re
Pennsylvania Co., 137 U. S. 451,
137 U. S. 452;
Virginia v. Rives, 100 U. S. 313;
United States, Petitioner, 194 U.
S. 194;
Barber Asphalt Co. v. Morris, 132 F.
945.
Inasmuch as the order of the circuit court staying the
proceeding until after final judgment in the state court might
prevent the adjudication of the questions involved, and thereby
prevent a review thereof in the circuit court of appeals, which had
jurisdiction for that purpose, we think that court had power to
issue the writ of mandamus to require the circuit court to proceed
with and determine the action pending before it.
Page 217 U. S. 281
The question then arises, was the circuit court justified in
staying the proceedings in the case and withholding further action
until the case involving the same question might be brought and
determined in the state court? We think that there can be but one
answer to this question. The case made upon the bill was within the
original jurisdiction of the circuit court of the United States.
The right of the circuit court to maintain such actions,
notwithstanding the legislation of the state creating probate
courts, has been so recently before this Court as to require no
further consideration now.
Waterman v. Canal-Louisiana
Bank, 215 U. S. 33. In
that case, following previous decisions of this Court, it was held
that the chancery jurisdiction of the federal courts to entertain
suits between citizens of different states to determine interests
in estates, and to have the same fixed and declared, having existed
from the beginning of the federal government, and created by the
grant of equity jurisdiction to such courts as it existed in the
chancery courts of England, could not be impaired by subsequent
state legislation creating courts of probate. The action was
therefore within the jurisdiction of the circuit court of the
United States.
So far as the record presented to the circuit court of appeals
shows, the only ground upon which the circuit court acted in
postponing the suit was because the State of South Dakota, which
had applied to be made a party, and which application was denied,
was about to begin a suit in the state court to determine an
escheat of the estate of John C. McClellan; therefore the action
was stayed, first, until the beginning of such suit, and then until
it was determined. It therefore appeared upon the record presented
to the circuit court of appeals that the circuit court had
practically abandoned its jurisdiction over a case of which it had
cognizance, and turned the matter over for adjudication to the
state court. This, it has been steadily held, a federal court may
not do.
Chicot County v. Sherwood, 148 U.
S. 529,
148 U. S.
534.
It cannot be denied that a circuit court of the United
Page 217 U. S. 282
states, like other courts, had power to postpone the trial of
cases for good reasons, but, by the orders made in this case, the
federal court withheld the further exercise of its authority until
the state court, by its action in a case involving all the parties,
might render a judgment which would be
res judicata, and
thus prevent further proceedings in the federal court.
The rule is well recognized that the pendency of an action in
the state court is no bar to proceedings concerning the same matter
in the federal court having jurisdiction, for both the state and
federal courts have certain concurrent jurisdiction over such
controversies, and, when they arise between citizens of different
states, the federal jurisdiction may be invoked, and the cause
carried to judgment, notwithstanding a state court may also have
taken jurisdiction of the same case. In the present case, so far as
the record before the circuit court of appeals discloses, the
circuit court of the United States had acquired jurisdiction, the
issues were made up, and when the state intervened, the federal
court practically turned the case over for determination to the
state court. We think it had no authority to do this, and that the
circuit court of appeals, upon the record before it, should have
issued the writ of mandamus to require the judge of the circuit
court of the United States to show cause why he did not proceed to
hear and determine the case.
Whether the state ought to have been allowed to intervene in the
federal court is not a question now before us, but, if not made a
party to the suit, its rights would not have been concluded by any
adjudication made therein.
Tindal v. Wesley, 167 U.
S. 204,
167 U. S.
223.
We have thus far considered the case upon the record made in the
circuit court of appeals, and certified here upon the writ of
certiorari. In this Court, the honorable judge of the district
court enters special appearance, and filed an affidavit as to the
proceedings before him, in which much appears which is not in the
record presented to the circuit court of appeals. In that
appearance and affidavit, the petition in intervention,
Page 217 U. S. 283
filed in the circuit court of the United States, is set forth in
full, as well as certain affidavits which were filed. We shall not
enter upon a consideration of these papers, because they are not in
the record as the same has been certified to us from the circuit
court of appeals as the one upon which it acted and declined to
issue the writ of mandamus. They set forth at length certain
proceedings in the state courts of South Dakota in which it is
alleged that the issue of the right of the complainants in the
equity suit to take the estate of John C. McClellan as his heirs at
law was determined adversely to them, and that such proceedings
were had as showed that further proceedings in reference to the
escheat of the estate of McClellan for want of legal heirs ought to
be determined by proceedings in the state court. In making his
appearance in this Court, and in presenting these papers, it is
evident that the district judge was much influenced in ordering the
stay of proceedings, and withholding judgment until the state court
had rendered its judgment, by the proceedings already had in the
state courts of South Dakota.
As we have said, we do not pass upon the sufficiency of those
proceedings to authorize the orders in question. We must take the
case as it is presented here upon the stipulated return to the writ
of certiorari on the record as presented to the circuit court of
appeals. Upon that record, we think the circuit court of appeals
should not have dismissed the writ of mandamus, but should have
ordered the alternative writ, or an order to show cause, to issue
in order that the district judge might have been fully heard before
the question was determined as to whether mandamus should issue or
not.
We shall therefore reverse the judgment of the circuit court of
appeals and remand the case to that court with directions to issue
the alternative writ, or an order to show cause. All we decide is
that, upon the petition and record made in the circuit court of
appeals, and as now presented by the transcript filed in this
Court, such alternative writ or order to show cause ought to have
issued. The judgment dismissing
Page 217 U. S. 284
the petition is reversed, and the case is remanded to the
circuit court of appeals for further proceedings as herein
indicated.
Reversed.