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VII. HEARING AND DETERMINATION.

a. In General.

6. A decree which determines that none of the defenses of a guaranty company are

b. Objections Waived or Cured Be- good in law, and that it is liable on its bonds

low.

e. Decisions on Facts.
d. Discretionary Rulings.

e. What Errors Warrant Reversal. VIII. JUDGMENT AND ITS EFFECT.

See also CONSTITUTIONAL LAW, 3; COURTS, 20.

I. APPELLATE JURISDICTION IN GENERAL.

1. The entry of a decree by the lower court in conformity with a mandate, after reversal with specific directions, does not cut off the right to an appeal not yet prosecuted from the decree of reversal. Merrill v. National Bank, 640

2. The constitutional provision that no fact tried by jury shall be otherwise re-examined in any court of the United States than according to the rules of common law is not violated by allowing an appeal for trial by a common-law jury from a judgment on the verdict of a jury of twelve men in a court of a justice of the peace, as that is not a common-law jury. Capital Traction Co. v. Hof, 873

for such sum as may thereafter be found to be due after crediting the amounts that may be realized from certain assets, is not final for the purposes of an appeal. Guarantee Co. v. Mechanics' Sav. Bank & T. Co. 818

7. A reversal of a decree, with specific directions to enter a decree in accordance with the mandate, is final for the purpose of an 640 appeal. Merrill v. National Bank,

8. The reversal of a judgment, with directions to sustain a demurrer, is not a final judgment on which writ of error will lie to a state court from the Supreme Court of the United States, if the lower court has power to make a new case by amendment of pleadings. Clark v. Kansas City,

467

9. An order discharging a prisoner on writ of habeas corpus, which, if valid, takes away his custody from the state court and puts an end to his imprisonment under the process of that court, is final for the purpose of an appeal, although he is discharged only pending an injunction against the prosecution. Harkrader v. Wadley,

399

233

10. An order directing the trial court to enter an order for turning over certain mon3. The creation of the right to appeal aft-eys and securities received from certain perer the rendition of a decree by the United sons, after making reasonable allowances for States court in the Indian territory as to "costs, disbursements, and attorneys' fees," tribal citizenship, and after the expiration of as contemplated by law, is not a final order the term of court at which the decree was for the purpose of appeal. California Nat. Bank v. Stateler, rendered, although the statutes in force at the time of its rendition made it final, does not destroy any vested right, since the exemption of such a judgment from review, and the mere expectation of a share in the public lands and moneys of the tribe, if hereafter distributed, cannot be deemed such an 11. The right to appeal directly to the absolute right of property as to place the United States Supreme Court from the cirdecree beyond the power of re-examination cuit court because of a constitutional quesby a higher court under authority of a sub- tion is not waived by taking an appeal also sequent act of Congress. Stephens v. Chero-to the circuit court of appeals. Pullman's

kee Nation,

1041

4. A reversal by the circuit court of ap; peals of an injunction in favor of the United States against a diversion by defendant of water from a stream on the public domain to the deprivation of a military reservation, and a remanding of the case for further proceed ings, are not final for the purpose of an appeal, where the court decides that defendant could acquire a water right as against the United States subject to the appropriation for the reservation, but the agreed facts show that, after his appropriation, water had been taken from a higher point to the reservation, but only a part of it used there, and it does not appear whether this supply might not have been sufficient if all had been used there. United States v. Krall, 1017 Finality of decision.

5. A final order overruling the return of the sheriff and discharging a prisoner from custody on writ of habeas corpus, made at a stated term of the circuit court of the United States, is appealable, although the original order was made at chambers. Harkrader v. Wadley,

399

II. JURISDICTION.

a. Over Federal Courts.

Palace Car Co. v. Central Transp. Co. 108

from the Supreme Court of the United States
to review the merits cannot be taken pending
a writ of error from the circuit court of ap-
peals in the same case.
Co. v. Crane Co.

12. A writ of error to the circuit court

Columbus Constr.

1102

13. The dismissal of a bill by a Federal circuit court on the ground that the rights claimed had been determined by a judgment of a state court, which could not be annulled, is not a decision against the jurisdiction of the Federal court which can be reviewed by a direct appeal to the supreme court. Blythe v. Hinckley,

783

14. A decision by a Federal circuit court, that the remedy is at law and not in equity, is not such a decision against the jurisdic tion of the court as can be reviewed by diId. rect appeal to the supreme court.

15. An action against a marshal of une United States and his sureties, and also attachment creditors for whom he has seized goods, is not one in which the judgment of the circuit court of appeals is final, under the act of Congress of March 3, 1891, § 6,

as the jurisdiction does not depend entirely | ing an ex parte appointment of a receiver, as

against subsequent proceedings of attachment and sequestration in a Federal court, if determined on grounds which did not in volve Federal questions, is not subject to review by writ of error from the Supreme Court of the United States. Remington Paper Co. v. Watson,

upon citizenship, although a separate suit against the attachment creditors would have come within that section. Sonnentheil v. Christian Moerlein Brew. Co. 492 16. A suit by a receiver of a Federal court for the collection of assets is merely ancillary to the suit in which he was appointed, so that, if the jurisdiction of the original 25. A claim that a judgment holding a resuit depended on diverse citizenship, an ap-ceiver of a national bank to be a trustee is peal from the decision in the ancillary suit "contrary to law" does not raise a Federal can be taken only to the circuit court of ap- question. Capital Nat. Bank v. First Nat. peals. Pope v. Louisville, N. A. & C. R. Co. Bank,

814

17. A decree of the circuit court of appeals in a case in which the jurisdiction at the outset depended on diversity of citizenship is final, even if another ground of jurisdiction was alleged in a supplemental bill by which a new defendant was made a party. Third Street & S. R. Co. v. Lewis, 766

Of circuit court of appeals.

18. A judgment in an action at law against the United States under the act of Congress of March 3, 1887, is reviewable by the circuit court of appeals on writ of erUnited States v. Harsha, 556

ror.

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20. The appellate jurisdiction of a capital case from the United States court for the northern district of the Indian territory, given by the act of Congress of March 1, 1895, to the appellate court of the United States for that territory, is exclusive, and supersedes the provisions of the acts of February 6, 1889, and March 3, 1891, respecting the jurisdiction of the Supreme Court of the United States. Brown v. United States,

312 21. Accrued interest legally due on a claim at the time of a judgment dismissing the case is to be included in determining the amount in issue for the purpose of jurisdiction on writ of error. Guthrie Nat. Bank v. Guthrie, 796

e. Over State Courts.

762

502

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243

22. Error of a circuit court in remanding a case to a state court is not ground of writ 32. A claim that a lien on property was of error to review the subsequent decision of wholly devested by foreclosure proceedings the case by the state court. Nelson v. Mo- in a Federal court involves such an assertion loney, 934 of a right and title under an authority exercised under the United States as gives the Supreme Court of the United States jurisdiction to re-examine the final judgment of the state court. Pittsburgh, C. C. & St. L. R. Co. v. Long Island Loan & T. Co. 528

Federal questions.

23. There must be a real and substantial dispute as to the effect or construction of the Constitution or of some law of the United States, upon the determination of which the recovery depends, in order to make such question a ground of jurisdiction in Federal courts. McCain v. Des Moines,

33. The dismissal of an appeal on the ground that it is prematurely taken does not 936 present a Federal question. Chappell Chem24. A judgment by a state court sustain-ical & F. Co. v. Sulphur Mines Co.

520

How raised.

or

42. No particular form of words phrases is required for the assertion of a claim of Federal rights to present a question for writ of error from the Supreme Court of the United States to a state court, but, if such rights were specially set up or claimed in the state court, in such manner as to bring them to the attention of that court, it is sufficient. Green Bay & M. Canal Co. v. Patten Paper Co.

34. The dismissal of a writ of habeas corpus by the highest court of the state having jurisdiction of the case is reviewable by the Supreme Court of the United States on writ of error, if it denies the prisoner any right specially set up and claimed by him under the Constitution, laws, or treaties of the United States. Tinsley v. Anderson, 91 35. A decision by a state court as to the title to lands claimed by both parties under patents from the state, and holding that the lands are embraced in one patent but not in 43. An explicit allegation that a claim is the other, does not present a Federal question founded on certain acts of Congress and a for review by the Supreme Court of the Unit-contract with the United States is sufficient ed States. White v. Leovy, to present a Federal question for review by the Supreme Court of the United States, if the alleged right is denied by the state court. Id.

907 36. The decision of a state court that the final determination of title provided for by a contract related to pending proceedings in the Land Department, and not to a cancelation by the Secretary of the Interior of a withdrawal order made before the date of the contract, does not present a rederal question for review by the Supreme Court of the United States. Allen v. Southern P. R. Co. 775

364

44. A Federal question may be sufficiently presented, although it is not so set up or claimed in a declaration as to be decided in passing on a demurrer, where it is presented subsequently by a motion to the court, and its denial assigned as error on appeal to the highest court of the state. Meyer v. Richmond, 374

37. The decision of a state court denying the validity of a statute which was the foun- 45. A Federal question sufficiently apdation of a contract, and in reality giving ef- pears, although the complaint does not menfect to subsequent statutes which impair the tion the Constitution of the United States, obligation of the contract, presents a Federal where the whole theory of the case is the question for the purposes of a writ of error impairment by statute of a contract created from the Supreme Court of the United by a prior statute, and the presentation and States, although the state court, in its opin- decision of this question appear from the recion, considers only the act which it holds ord and opinion of the state court. Columvoid and does not discuss the later acts. Mc-bia Water Power Co. v. Columbia Electric Cullough v. Virginia, Street R. Co. Other questions also. Highest state court.

382

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521

46. A writ of error to the court of appeals of Colorado from the Supreme Court of the United States, in a case involving the validity of regulations of the Secretary of Agriculture concerning diseased cattle, in which the question of the constitutionality of the acts of Congress on the subject was raised, but the court held that the regulations were not authorized by the statute, will not lie on the ground that the supreme court of the state, which has jurisdiction to decide constitutional questions, would not have taken jurisdiction because the judgment rested on other grounds, when it has not so decided or Mullen v. any opportunity to do so. Western Union Beef Co.

had

III. TRANSFER OF CAUSE.

635

47. The two years' limitation of time for taking a writ of error from the Supreme Court of the United States to a state court is not altered or affected by the provision of time for an appeal or writ of error to the the act of Congress of 1891, § 6, limiting the circuit court of appeals to one year. Allen Southern P. R. Co.

Time when question must be raised.
40. A writ of error to a state court will
be dismissed when no Federal right was spe-
cially set up or claimed until after the judg-v.
ment in the highest court of the state, when
the petition for the writ was filed. Califor-
nia Nat. Bank v. Thomas,
231

41. A Federal question is raised too late for writ of error to a state court when presented on application to the supreme court for a rehearing. Capital Nat. Bank v. First Nat. Bank, 502

775

48. Interveners who did not except to the action of the trial court in vacating an attachment and dismissing the action, and who were not parties to proceedings in error in a territorial court which decided the case without any suggestion that their presence was necessary, are not necessary parties on appeal to the Supreme Court of the United

of jurisdiction. Central Loan & T. Co. v. Campbell Commission Co.

IV. RECORD AND CASE ON APPEAL.

623

States from a dismissal of the cause for want | tration to others and for her own appointment as administratrix is denied on the ground that oer divorce in another state from a former husband was void, must be dismissed when the possibility of issuing any letters of administration has been superseded 49. A statement of facts not filed within by the probate of a will, although the disthe time required by Ariz. Rev. Stat. §§ 843-missal leaves her bound by the adjudication 845, cannot be considered as part of the rec- that she was not the widow of the deceased. ord on appeal from the supreme court of that territory. Cohn v. Daley, 1077

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Id.

57. A writ of error to a state court will be dismissed when the decision was based on a local or state question and it is unnecessary to decide any Federal question. White v. Leovy, 907

VII. HEARING AND DETERMINATION.

a. In General.

51. A bill of exceptions may be taken to include all the evidence, although it does not expressly state that fact, if the entries sufficiently show that all the evidence is included. Gunnison County v. R. H. Rollins & 58. The extent of the review authorized Sons, S9 on appeal to the Supreme Court of the Unit52. An assignment of error raising a Fed-ed States in citizenship cases from the Uniteral question as to the validity of a personal judgment against a nonresident of the state, who had no personal notice, in an assessment proceeding, is not sufficient to raise a Federal question as to the validity of the assessment with respect to the property assessed. Dewey v. Des Moines,

665

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See also supra, 40.

54. A dismissal of an appeal when the appellant was the proper party to take the appeal and was entitled to hearing cannot be justified by his admission on the appeal as to the merits of the case against him, but the proper judgment in such case is an afBosworth v. Terminal R. Asso.

firmance.

941

ed States court in the Indian territory, under the act of Congress of July 1, 1898, is limited to the constitutionality or validity of the legislation affecting citizenship or the allotment of lands in the Indian territory. Stephens v. Cherokee Nation, 1041

59. On appeal from the supreme court of a territory, if there is no finding of facts or statement of facts in the nature of a special verdict, it must be assumed that the judgment was justified by the evidence. Marshall v. Burtis,

579

60. It must be assumed that the evidence supports the judgment on appeal from a ter ritorial court in which there is no statement of facts in the nature of a special verdict under the act of Congress of April 7, 1874. Cohn v. Daley, 1077

61. On appeal from the supreme court of a territory, when no jury was had and there are no questions as to the admission or exclusion of testimony, the only question to consider is whether the findings of fact sustain the decree. Nacglin v. De Cordoba,

315

521

62. Questions as to the legal title to lands, and the right to erect a steam plant for use when water power is unavailable, as an incident of a right to put an electric plant on the banks of a canal for the use of water power, are not reviewable on writ of error from the Supreme Court of the United States to a state court. Columbia Water Power Co. v. Columbia Electric Street R. Co. Qualification of judge. 55. Laches of parties cannot prevent the 63. A judge who appointed a receiver in a dismissal of a writ of error, when the ques- foreclosure suit and made an order allowing tion involved has become a moot question, him a monthly sum for services, and also the decision of which cannot affect the re- rendered the final decree of foreclosure and lief to be ultimately granted in the case. decrees for delivery of possession, is prohibKimball v. Kimball, 932 ited by the act of Congress of March 3, 1891, 56. A writ of error to review a decision by chap. 517, § 3, to sit in the circuit court of a state court on the ground that it denied appeals on an appeal from the decree of anfull force and credit to a decree of divorce other judge concerning the monthly compenrendered in another state, because the peti-sation of the receiver after a certain comtion of a woman claiming to be a decedent's promise between him and purchasers on the widow for revocation of letters of adminis- foreclosure. Moran v. Dillingham,

930

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VIII. JUDGMENT AND ITS EFFECT. 73. The cost of appellate proceedings should be paid by the appellant on final af

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See CLAIMS, 4; COURTS, 10-12. ASSOCIATIONS.

See CONSPIRACY, 2, 5.
ATTACHMENT.

See also APPEAL AND ERROR, 24; CON.
STITUTIONAL LAW, 11; COURTS, 2.

1. The right to proceed by attachment against the property of a nonresident, which

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