ing to the executor or administrator a rea-, the estates of decedents to depend on the ex-
sonable time, not exceeding one year and six
months, for the settlement of the estate."
So that, expressly the time for the settle-
ment of the estate must be fixed by the pro-
bate court at the time when the letters of
administration are granted, and it is pro-
vided, by the following section, that "the
probate court may, upon good cause shown
by the executor or administrator, extend the
time for the settlement of the estate not ex-
ceeding one year at a time, unless, in the
judgment of the court, a longer time be nec-
essary." [§ 4524.]

ercise of discretionary power by the courts.
It does provide that the probate court shall
fix a time within which claims must be pre-
sented, to wit, not less than six nor more
than eighteen months. Between those limits
of six and eighteen months the probate court
may have power of discretionary action on
good cause shown. But having once exer-
cised that power, as in the present case, by
fixing the term of probation at six months,
any extension of that term could only be
had, upon good cause shown, "before final
settlement."

These sections have nothing to do with the We are not called upon by the facts of the
limitation prescribed for the proof of pre-present case to determine whether a Federal
sentation of the claims of creditors, which
is found in § 4509. Moreover, in the pres-
ent case, the court having fixed the period of
six months within which the estate should
be settled, the administrator, accordingly,
having no good cause to show to the con-
trary, filed his final account of the settle-
ment of the estate within the time so lim-
ited, and the account was allowed and the
final decree of distribution made before the
institution of the present suit.

court might or might not, on good cause
shown, extend the time in which a claim
might be asserted against a decedent's es-
tate beyond the term previously fixed by the
probate court. But it is sufficient to say
that, in the present case, no application was
made to the Federal court to exercise such
a power, either before or after the limitation
prescribed under the state statute had ex-[237]
pired. All that was before the circuit court
of the United States was an action at law
upon a cause of action against a decedent's
estate, which, under the laws of the state of
Minnesota, could not be maintained in the
courts of that state, because barred by the
the administration of the estates of deceased
persons. Moreover, it is obvious, and it has
always been held, that the circuit court can-
not, in the trial of an action at law, exer-
cise the power of a court of equity. An ap-
plication to the Federal court to decree an
extension of time beyond the period previ-

Section 4509 provides that, at the time of
the granting letters testamentary or of ad-
ministration, the court shall make an order
limiting the time in which creditors may
present claims against the deceased for ex-operation of the laws of the state regulating
amination and allowance, which shall not
be less than six months nor more than one
year from the date of such order, and that
no claim or demand shall be received after
the expiration of the time so limited, unless,
for good cause shown, the court may, in its
discretion, receive, hear, and allow such
claim upon notice to the executor or admin-ously prescribed by the probate court would
istrator.
[236] *But it should be observed that such power
to extend the time limit must be exercised,
on good cause shown, "before final settle-
ment," and, in the present case, no such
good cause was shown, either to the probate
court or to the circuit court of the United
States, before final settlement. It is evi-
Ident that the discretion to extend the time
for proof of claims was to be appealed to for
some good reason, that is, reason showing
why the claim was not made or the suit
brought before the expiration of the time
fixed in the original order.

The circuit court of appeals admits that "there is much reason, perhaps, for saying that citizens of other states ought not to be allowed to maintain an action in the Federal court against a local administrator or executor after the expiration of a period when, by the express command of the legislature, no such action can be maintained in the local courts, provided the period fixed by the legislature is reasonable, but the right of a nonresident creditor to bring his action in the national courts ought not to be conditioned or made to depend upon the time that a local court chances to approve a final settlement when the time of such approval rests in its discretion, and is largely a matter of convenience." But the legislation of Minnesota does not make the limit within which claims must be made against

have to be made by a bill in equity, show-
ing good cause. Scott v. Armstrong, 146 U.
S. 499, 36 L. ed. 1059, 13 Sup. Ct. Rep. 148.

Following our previous and repeated decisions, that the courts of the United States, when exercising jurisdiction over executors and administrators of the estates of decedents within a state, are administering the laws of that state, and are bound by the same rules which govern the local tribunals, we conclude, in the present case, that—

The judgment of the Circuit Court of Appeals must be reversed; the judgment of the Circuit Court is also reversed, and the cause is remanded to that court, with directions to enter judgment in conformity with the opinion of this court.

We

of the United States under the judiciary act | firmed by the circuit court of appeals for the
of March 3, 1891, where the cause has been eighth circuit. The case is reported in 43
Improperly brought up by writ of error; and C. C. A. 594, 104 Fed. 380. The cause was
in such case the copy of the record filed un- then brought here by a writ of error.
der the writ of error may be directed to be think the proper course was to have asked
taken and deemed a sufficient return to the for a writ of certiorari to bring the final
judgment of the circuit court of appeals here
for review. However, under the powers pos-
sessed by us under the judiciary act of

certiorari.

[No. 42.]

Argued April 21, 22, 1902. Decided Decem- March 3, 1891, we now allow a writ of cer

Ο

ber 1, 1902.

N WRIT of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit to review a judgment which affirmed a judgment of the Circuit Court of the United States for the District of Minnesota in favor of plaintiff in a suit against an administrator upon a claim against decedent's estate. Reversed and remanded. See same case below, 43 C. C. A. 594, 104 Fed. 380.

The facts are stated in the opinion. Mr. Edmund S. Durment argued the cause, and, with Mr. Albert R. Moore, filed a brief for petitioner.

Mr. Edward C. Stringer argued the cause, and, with Mr. McNeil V. Seymour, filed a brief for defendant in error.

For contentions of counsel see their briefs as reported in Security Trust Co. v. Black River Nat. Bank, ante, p. 147.

[238] *Mr. Justice Shiras stated the facts and delivered the opinion of the court:

tiorari, and direct that the copy of the record heretofore filed under the writ of error shall be taken and deemed as a sufficient return to the certiorari.

The questions presented are similar to those just decided in the case of Security Trust Co. v. Black River Nat. Bank, 187 U. S. 211, ante, 147, 23 Sup. Ct. Rep. 52, tried in the same court, and where the parties were represented by the same counsel which appear in this one.

Accordingly, for the reasons given in the opinion in that case, the judgment of the Circuit Court of Appeals is reversed; the judgment of the Circuit Court is likewise reversed, and the cause is remanded to that court, with directions to enter judgment in accordance with the opinion of this court.

HENRY B. F. MACFARLAND, John W. Ross, and John Biddle, Commissioners of the District of Columbia, Appts.,

A

บ.

JESSE BROWN and Rosa Wallach.

(See S. C. Reporter's ed. 239-246.)

Appeal-final judgment.

decree of the court of appeals of the District of Columbia, which reversed an order of the supreme court of that District in condemnation proceedings, and remanded the cause to that court, "that proceedings may be taken and a jury of twelve ordered as directed by the statute," is not a final decree for the purpose of an appeal to the Supreme Court of the United States.

[No. 331.]

cember 1, 1902.

This was an action brought in January, 1897, in the circuit court of the United States for the district of Minnesota, by William H. Dent, as receiver of the First National Bank of Decorah, Iowa, against the Security Trust Company of St. Paul, Minnesota, as administrator of the estate of Sumner W. Matteson, deceased, to recover the sum of $13,535.06, being the amount of principal and interest of certain promissory notes made by said Matteson in his lifetime, and which were the property of the said national bank. The execution and ownership of the notes were not denied, nor that the Security Trust Company had been, on September 3, 1895, duly appointed by the pro- Argued November 5, 1902. Decided Debate court of Ramsey county, Minnesota, administrator of the estate of said Matteson. The defendant, however, alleged in its answer that the action was not brought until after the expiration of the time limited by the order of the probate court for the filing, examination, and allowance of claims against Matteson's estate, nor until after the examination and allowance of the administrator's final account, whereby, under the laws of the state of Minnesota, the official existence of the defendant company as administrator had ceased, and that, therefore, no action could be maintained against it; and also that the right to a judgment on the notes in suit was, by the laws of Minne-approved March 3, 1899 (30 Stat. at L. sota, forever barred, notwithstanding they were owned by a nonresident of the state, and that recovery was sought in a Federal court.

[239] *The plaintiff obtained a judgment in the circuit court, and that judgment was af

APPEAL from the Court of Appeals of the District of Columbia to review a decree which reversed an order of the Supreme Court of the District and remanded the cause for further proceedings. Dismissed.

See same case below, 30 Wash. L. Rep. 235.

Statement by Mr. Justice Shiras: Act for the Extension of Pennsylvania Ave. *Under the act of Congress entitled "An[240] nue Southeast, and for Other Purposes,"

NOTE.-A8 to what judgments or decrees are notes to final for purposes of review-see C. C. A. 379; Central Trust Co. v. Madden, 17 Brush Electric Co. v. Electric Improv. Co. 2

C. C. A. 238; Prescott & A. C. R. Co. v. Atchi

son, T. & S. F. R. Co. 28 C. C. A. 482; and Gibbons v. Ogden, 5 L. ed. U. S. 302.

1381, chap. 461), the commissioners of the District of Columbia were by the terms of 85 of said act "authorized and directed to institute by a petition in the supreme court of the District of Columbia, sitting as a district court, a proceeding to condemn the land necessary for the extension and widening of Sherman avenue from Florida ave nue to Whitney avenue with the uniform width of one hundred feet." The provisions of said 5 are as follows:

"Sec. 5. That within ninety days after the approval of this act the commissioners of the District of Columbia be, and they are hereby, authorized and directed to institute by a petition in the supreme court of the District of Columbia, sitting as a district court, a proceeding to condemn the land necessary for the extension and widening of Sherman avenue from Florida avenue to Whitney avenue with the uniform width of one hundred feet.

in said act of Congress should not be taken. Pursuant to such order, the jury was summoned and impaneled by the marshal, and upon the 7th day of February, 1900, were sworn according to law, and thereafter the said jury proceeded according to the provisions of chapter 11 of the Revised Statutes of the United States relating to the District of Columbia, and having been upon the premises, in accordance with said statute, on the 1st day of May, A. D. 1900, made out their written verdict, which was signed by a majority of the said jurors. Upon the 9th day of May, 1900, the same was filed in the said court under the act of March 3, 1899.

Thereafter, on the 3d day of July, 1901, the trial court passed an order nisi confirming said verdict, and requiring all parties to appear and show cause on or before July 22 why such verdict should not be finally confirmed by the court. Upon July 22, 1901, the appellees, in response to said order, filed their exceptions to said verdict.

"That of the amount found due and awarded for damages for and in respect of the land condenmed under this act for the extension and widening of said Sherman avenue not less than one half thereof shall be assessed by said jury in said proceedings against those pieces or parcels of ground abutting on both sides of Sherman avenue, and the extension thereof as herein provided, to a distance of three hundred feet from the building lines, on the east and west sides of Sherman avenue as widened and extended: Provided, That no assessment shall be made against those pieces or Messrs. Andrew B. Duvall and Arthur parcels of ground out of which land has al-H. O'Connor argued the cause, and, with ready been dedicated to the District of Co- | Mr. Edward H. Thomas, filed a brief for aplumbia for the purpose of widening Sher-pellants. man avenue as herein provided for.'

The court, having heard arguments upon the said exceptions, on October 2, 1901,[242] passed an order overruling the said exceptions and finally ratifying and confirming in all respects the said verdict.

Under the authority thereby conferred a petition was filed by the commissioners of the District of Columbia in the supreme [241] court of the District of Columbia, sitting as a district court, upon the 31st day of May, 1899, being No. 555 on the district court docket, praying that the court direct the marshal of the District of Columbia to summon a jury of seven judicious, disinterested men, not related to any party in terested, to be and appear on the premises on a day specified, to assess the damages, if any, which each owner of land through which Sherman avenue is proposed to be extended and widened, as aforesaid, may sustain by reason thereof, and that such other and further orders might be made and proceedings had as were contemplated by said act of Congress and by chapter 11 of the Revised Statutes of the United States relating to the District of Columbia, to the end that a permanent right of way for the public over the said lands might be obtained and secured for the aforesaid extension and widening of Sherman avenue. [D. C. Rev. Stat. p. 29.]

Upon this petition the said court on the 16th day of September, 1899, passed an order requiring interested parties to appear in said court on or before the 2d day of October, 1899, and show cause why the prayer of said petition should not be granted, and why the proceedings directed

Thereupon the appellees appealed the case to the court of appeals. The court of appeals reversed the trial court, from which decision the commissioners of the District of Columbia have appealed to this court.

The court declined to hear Mr. Samuel
Maddox for appellees.

Mr. Justice Shiras delivered the opinion of the court:

Whether those provisions of § 263 of the Revised Statutes of the District of Columbia which provide for a second jury are applicable to this proceeding under the act of March 3, 1899; whether, if entitled to a second jury, the appellees waived such right by filing, in the supreme court of the district, exceptions to the verdict and award of the first jury, and by appealing from the order of that court, overruling their exceptions and affirming said verdict and award, to the court of appeals of the District; and whether it was the duty of the commissioners, and not the duty of the parties claiming to have been dissatisfied with the verdict, to demand a second jury, if a right to such jury exists,-are important questions, and we can well understand why those who are intrusted with the administration of the law are anxious to have them speedily and finally determined.

But we are of opinion that the case is not before us in a condition to make it our duty to deal with those questions. The decree of the court of appeals, reversing the order of the supreme court, and remanding the cause to that court, "that proceedings may be taken and a jury of twelve ordered as directed by the statute," is not a final

decree from which an appeal will lie to this court.

[243] *It is contended by the learned counsel of the appellants that the case is within the rulings of this court in Phillips v. Negley, 117 U. S. 665, 29 L. ed. 1013, 6 Sup. Ct. Rep. 201, and in Humphries v. District of Columbia, 174 U. S. 190, 43 L. ed. 944, 19 Sup. Ct. Rep. 637. It is true that in the first of those cases this court entertained a writ of error to the supreme court of the District, and reversed its judgment. But, in disposing of the question raised, whether the judgment of the court below was or was not a final judgment, this court said:

end made or taken at that term, to set them aside and grant new trials of the actions in which they were rendered, which it has over judgments, when such proceedings are taken during the term at which they were rendered; and that, this being true, the proceeding and order of the court, in the exercise of this jurisdiction and discretion, cannot be reviewed on appeal or writ of error."

The court proceeded to consider the question at length, and having determined that the supreme court of the District had no discretionary power to set aside judgments obtained at a previous term, where no proceeding for that purpose had been taken at that term, held that the court had acted without jurisdiction, and that its judgment was void and reviewable on error.

reversing the judgment of the supreme court of the District and awarding further proceedings. Such action in the present case may have been erroneous, but if so we cannot correct it until brought before us by an appeal from a final judgment. The further proceedings may possibly reach such a result that neither party will desire an appeal.

"Interpreting the judgment of the general term by the opinion of the learned judge who spoke for the court, we must infer that it was intended to dismiss the appeal for want of jurisdiction to entertain The distinction between that case and the it, on the ground that the order of the spe- present one is, therefore, seen in the fact cial term, vacating its own judgment, ren- that, in the one, the supreme court of the dered at a previous term, was not only District acted without jurisdiction, and in within the power of that court, but was so the other the court of appeals was in the purely discretionary that it was not re-regular exercise of its appellate power in viewable in an appellate court. The same consideration is urged upon us as a ground for dismissing the present writ of error for want of jurisdiction in this court, it being alleged that the order of the supreme court of the District at special term is not only within the discretion of that court, but that, as it merely vacates a judgment for the purpose of a new trial upon the merits of the original action, it is not a final judgment, and therefore not reviewable on writ of error. If, properly considered, the order in question was an order in the cause, which the court had power to make at the term when it was made, the consequence may be admitted, that no appellate tribunal has jurisdiction to question its propriety; for, if it had the power to make it, and it was a power limited only by the discretion of the court making it, as in other cases of orders setting aside judgments at the same term at which they were rendered, and granting new trials, there would be nothing left for the jurisdiction of an appellate court to act upon. The vacating of a judgment and granting a new trial, in the exercise of an acknowledged jurisdiction, leaves no judgment in force to be reviewed. If, on the other hand, the order was made without jurisdiction on the part of the court making it, then it is a proceeding which must be the subject of review by an appellate court. The question of the jurisdiction of this The other case relied on, Humphries v. [244]court to entertain *the present writ of error, District of Columbia, was a case where, in therefore, necessarily involves the jurisdic- the supreme court of the District, a verdict tion of the supreme court of the District, had been signed by all twelve of the jurors, both at special and general term, and the but one of them was disabled by illness nature and effect of the order brought into from being present in court when the verdict review, so that the question of our jurisdic- was delivered. Upon this verdict a judg tion is necessarily included in the question ment was entered. Proceedings in error of the validity of the proceeding itself. were taken, but were dismissed by the court The legal proposition involved in the judg. of appeals on account of a failure to have ment complained of, and necessary to main- the bill of exceptions prepared in time. tain it, is that the supreme court of this Thereafter, and at a succeeding term, the District at special term has the same dis-defendant, against whom judgment had cretionary power over its judgments ren- been entered, filed a motion to vacate the dered at a previous term of the court, with judgment on the ground that there was no out any motion or other proceeding to that valid verdict, which motion was overruled. 187 U. S. U. S., Book 47.

În Hume v. Bowie, 148 U. S. 245, 37 L. ed. 438, 13 Sup. Ct. Rep. 582, where this court dismissed a writ of error to the supreme court of the District of Columbia upon the ground that the judgment brought here by the writ was not a final judgment, the case of Phillips v. Negley *was consid-[245] ered, and the distinction between a judg ment ordering a new trial when the court has jurisdiction to make such an order, and a judgment where such jurisdiction does not exist, was pointed out by the chief justice, and where it was held that, in the former case, where jurisdiction existed, a judgment setting aside the judgment of the trial court, and awarding a new trial, is not a final judgment reviewable on error, and in the latter case, where jurisdiction had ceased to exist, by reason of lapse of time, a judgment awarding a new trial is without jurisdiction, would be an order in a new proceeding, and, in that view, final and reviewable.

11

161

On appeal to the court of appeals this deci- | sion was reversed and the case remanded, with instructions to vacate the judgment, to set aside the verdict and award a new trial. This ruling was based on the proposition that the verdict was an absolute nullity, and therefore the judgment resting upon it void, and one which could be set aside at any subsequent term. This view of the nature of the verdict was not approved by this court, which held that the defect or irregularity in the rendering of the verdict was mere matter of error, and not one which affected the jurisdiction.

trict of Columbia, which reverses so much
of an order of the supreme court of that
District as is appealed from, and remands
the cause to that court, with directions to
vacate that portion of the order, and for
such further proceedings in the cause ac-
cording to law as may be right and just, is
not final so as to be within the appellate
Jurisdiction of the Supreme Court of the
United States.

Argued

[No. 332.]

November 5, 1902. Decided De-
cember 1, 1902.

from the of of

See same case below, 30 Wash. L. Rep.

237.

In the present case no attack is made on the jurisdiction of either the supreme court of the District or of the court of appeals. the District of Columbia to review a That the decree of the latter court was not meant to be final is shown by its language, decree which reversed in part an order of which does not definitely adjudge the whole the Supreme Court of the District, and resubject-matter, but anticipates further ac-manded the cause for further proceedings. tion of the supreme court. The litigation Dismissed. [246] of the parties on the *merits of the case has not been terminated. "The rule is well settled and of long standing that a judgment or decree, to be final, within the meaning of that term, as used in the acts of Congress giving this court jurisdiction on appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered." Bostwick v. Brinkerhoff, 106 U. S. 3, 27 L. ed. 73, 1 Sup. Ct. Rep. 15.

We do not overlook the fact that this statement of the law was made in a case where the appeal was taken directly from the decree of the trial court; but we think the principle on which the rule rests is applicable where the appeal is from the decree of an intermediate appellate court.

We are unwilling to make any departure from the rule that demands finality in a decree to render it subject to review on appeal. It would be very unfortunate if mere errors in the administration of statutes, of this character, not going to their validity, or to the jurisdiction of the courts below, could be brought here, from time to time, in advance of a final disposition of the controversy.

The appeal is dismissed.

(See S. C. Reporter's ed. 246-248.)

Appeal-final judgment.

A decree of the court of appeals of the Dls

NOTE.-48 to what judgments or decrees are
to
final for purposes of review-see notes
Brush Electric Co. v. Electric Improv. Co. 2
C. C. A. 379; Central Trust Co. v. Madden, 17
C. C. A. 238; Prescott & A. C. R. Co. v. Atchi-
son,
T. & S. F. R. Co. 28 C. C. A. 482; and
Gibbons v. Ogden, 5 L. ed. U. S. 302.

The facts are stated in the opinion.
Messrs. Andrew B. Duvall and Arthur
H. O'Connor argued the cause, and, with
Mr. Edward H. Thomas, filed a brief for ap-
pellants.

The court declined to hear Mr. Leo Sim-
mons for appellees.

*Mr. Justice Shiras delivered the opinion [247] of the court:

This is an appeal from a decree of the court of appeals of the District of Columbia, reversing a decree of the supreme court of the District; and there is a motion to dismiss the appeal for the alleged reason that the decree appealed from was not final but contemplated further proceedings in the supreme court.

The following paragraph from the opinion of the court of appeals sufficiently discloses the nature of its decree:

"There is, however, a third consideration, which we cannot ignore in the disposition of this case. By the act of Congress of June 6, 1900, already mentioned, it was provided that, if for any reason the assessments for benefits should be declared void, the commissioners should make application This evito the court for a reassessment. dently has no reference to the invalidity consequent upon judicial decision of the unconstitutionality of the act of Congress of March 3, 1899, for there could then, of course, be no lawful reassessment, since the foundation for the whole proceeding would fail. The holding of this court that the act of March 3, 1899, was unconstitutional did not, therefore, avail to set in motion the instrumentalities of the act of June 6, 1900, for reassessment. And when the Supreme Court of the United States held the act of 1899 to be a constitutional and valid exercise of legislative authority all reason for reassessment under the act of 1900 vanthe discordant ished. Nevertheless, by tenor of judicial decision the appellees were induced to forego a right which should now be restored to them, that of summoning a second jury of assessment un187 U. S.