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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.

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

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

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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 prosecu tion. Harkrader v. Wadley,

399

10. An order directing the trial court to enter an order for turning over certain moneys and securities received from certain persons, after making reasonable allowances for "costs, disbursements, and attorneys' fees," as contemplated by law, is not a final order for the purpose of appeal. California Nat. Bank v. Stateler,

233

II. JURISDICTION.

a. Over Federal Courts.

11. The right to appeal directly to the United States Supreme Court from the circuit court because of a constitutional question is not waived by taking an appeal also to the circuit court of appeals. Pullman's Palace Car Co. v. Central Transp. Co.

108

12. A writ of error to the circuit court 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 apColumbus Constr. peals in the same case. 1102 Co. v. Crane Co.

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

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

3. The creation of the right to appeal after the rendition of a decree by the United States court in the Indian territory as to tribal citizenship, and after the expiration of the term of court at which the decree was 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

absolute right of property as to place the decree beyond the power of re-examination by a higher court under authority of a subsequent act of Congress. Stephens v. Cherokee Nation,

1041

4. A reversal by the circuit court of appeals 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

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 dlrect appeal to the supreme court. Id.

15. An action against a marshal of ne 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

upon citizenship, although a separate suit against the attachment creditors would have come within that section. Sonnentheil v. Christian Moerlein Brew. Co.

492

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 762 Court of the United States. Remington Paper Co. v. Watson,

25. A claim that a judgment holding a re

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 suit 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 502 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, Of circuit court of appeals. action at law 18. A judgment in an against the United States under the act of Congress of March 3, 1887, is reviewable by the circuit court of appeals on writ of er556 United States v. Harsha,

766

ror.

26. A decision that money in the hands of a receiver of a national bank is held in trust and has never been part of the assets of the bank, when rendered on general equitable principles, does not involve any Federal question which will sustain a writ of error to the state court.

Id.

b. Over Courts of Territory or Indians. See also supra, 3.

19. An appeal from a decision of the tribal authorities in the Indian territory, or of an Indian commission created by Congress, may be authorized by act of Congress. Stephens v. Cherokee Nation,

1041

27. The fact that a defendant is a receiver appointed by a Federal court does not raise a Federal question which will sustain a writ of error to a state court from the Supreme Court of the United States, where the questions involved are questions of general law, including the inquiry whether a receiver is responsible for the acts of his predecessor in 633 office. Bausman v. Dixon,

28. An injunction by a state court against interference with the construction or maintenance of a sidewalk and curbing in front of defendant's premises, where he has forcibly interfered, claiming that his property is being taken without compensation, does not present a Federal question, when the court assumes his right to damages, but holds that he has mistaken his remedy and must resort to another proceeding for damages. MeQuade v. Trenton,

581

29. Error in the estimate of the amount of

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 capital employed in a state and subject to supersedes the provisions of the acts of Feb-tax therein does not present a Federal quesruary 6, 1889, and March 3, 1891, respecting tion on writ of error to a state court. New the jurisdiction of the Supreme Court of the York, Parke D. & Co., v. Roberts, United States. Brown v. United States,

323 30. The loss of a right under the Constitution of the United States by action or failure to act does not present a Federal question for writ of error to a state court. Pierce v. Somerset Railway,

316

31. A Federal question is presented by the determination of a state court as to whether the right given by act of Congress to the "legal representatives" of a person is for the benefit of his next of kin, to the exclusion of his creditors, or not. Briggs v. Walker,

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 jurisdicGuthrie Nat. Bank tion on writ of error. 796 v. Guthrie,

e. Over State Courts.

243

22. Error of a circuit court in remanding a case to a state court is not ground of writ of error to review the subsequent decision of the case by the state court. Nelson v. Mo934 loney,

32. A claim that a lien on property was wholly devested by foreclosure proceedings in a Federal court involves such an assertion 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 528 state court. Pittsburgh, C. C. & St. L. R. Co. v. Long Island Loan & T. Co.

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 33. The dismissal of an appeal on the recovery depends, in order to make such question a ground of jurisdiction in Federal ground that it is prematurely taken does not 936 present a Federal question. Chappell Chemcourts. McCain v. Des Moines, 24. A judgment by a state court sustain-ical & F. Co. v. Sulphur Mines Co.

520 1235

34. The dismissal of a writ of habeas cor- | How raised. pus 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 the other, does not present a Federal question for review by the Supreme Court of the United States. White v. Leovy,

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

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.

364

39. A Federal question which will support a writ of error to a state court is not raised by a decision of a state court against the validity of a statute under which bonds were issued, although it had held the statute valid before their issue, where its decision is based on the Constitution and laws of the state. Turner v. Board of Commissioners,

768

43. An explicit allegation that a claim is founded on certain acts of Congress and a contract with the United States is sufficient 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.

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

45. A Federal question sufficiently appears, although the complaint does not mention the Constitution of the United States, where the whole theory of the case is the impairment by statute of a contract created by a prior statute, and the presentation and decision of this question appear from the record and opinion of the state court. Columbia Water Power Co. v. Columbia Electric Street R. Co. 521 Highest state court.

|

37. The decision of a state court denying the validity of a statute which was the foundation of a contract, and in reality giving effect to subsequent statutes which impair the obligation of the contract, presents a Federal question for the purposes of a writ of error from the Supreme Court of the United States, although the state court, in its opinion, considers only the act which it holds void and does not discuss the later acts. McCullough v. Virginia, 382 Other questions also.

38. The determination by a state court of 46. A writ of error to the court of appeals a Federal question adversely to plaintiff in of Colorado from the Supreme Court of the error will not sustain the jurisdiction of the United States, in a case involving the validSupreme Court of the United States, if an-ity of regulations of the Secretary of Agriother question, not Federal, was also raised culture concerning diseased cattle, in which and decided against him and the decision the question of the constitutionality of the thereof is sufficient, notwithstanding the acts of Congress on the subject was raised, Federal question, to sustain the judgment. but the court held that the regulations were Harrison v. Morton, 63 not authorized by the statute, will not lie on Pierce v. Somerset Railway, 316 the ground that the supreme court of the Chappell Chemical & F. Co. v. Sulphur Mines state, which has jurisdiction to decide conCo. 517 stitutional questions, would not have taken jurisdiction because the judgment rested on other grounds, when it has not so decided or had any opportunity to do so. Mullen v. Western Union Beef Co.

635

III. TRANSFER OF CAUSE.

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.

775 action of the trial court in vacating an at48. Interveners who did not except to the tachment and dismissing the action, and who 41. A Federal question is raised too late were not parties to proceedings in error in a for writ of error to a state court when pre-territorial court which decided the case withsented on application to the supreme court out any suggestion that their presence was for a rehearing. Capital Nat. Bank v. First necessary, are not necessary parties on apNat. Bank, 502 peal to the Supreme Court of the United

Time when question must be raised.

40. A writ of error to a state court will be dismissed when no Federal right was specially 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. California Nat. Bank v. Thomas,

231

States from a dismissal of the cause for want | tration to others and for her own appoint

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

IV. RECORD AND CASE ON APPEAL.

623

ment 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

50. A letter of an attorney withdrawing appearance may be brought into the record by bill of exceptions which sets it forth at length and states that it was filed by the plaintiff in the case. Rio Grande I. & C. Co. v. Gildersleeve, 1103

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 & Sons,

689

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,

VII. HEARING AND DETERMINATION.

a. In General.

907

58. The extent of the review authorized 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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55. Laches of parties cannot prevent the dismissal of a writ of error, when the question involved has become a moot question, the decision of which cannot affect the relief to be ultimately granted in the case. Kimball v. Kimball, 932

56. A writ of error to review a decision by a state court on the ground that it denied full force and credit to a decree of divorce rendered in another state, because the petition of a woman claiming to be a decedent's widow for revocation of letters of adminis

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

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63. A judge who appointed a receiver in a foreclosure suit and made an order allowing him a monthly sum for services, and also rendered the final decree of foreclosure and decrees for delivery of possession, is prohibited by the act of Congress of March 3, 1891, chap. 517, § 3, to sit in the circuit court of appeals on an appeal from the decree of another judge concerning the monthly compensation of the receiver after a certain com promise between him and purchasers on the foreclosure. Moran v. Dillingham,

930

b. Objections Waived or Cured Below.

64. Merely charging the jury that punitive damages cannot be recovered will not cure the erroneous admission of evidence, in a libel case, of the wealth of one of the defendants, when this evidence is not specifieally withdrawn. Washington Gaslight Co. v. Lansden,

543

c. Decisions on Facts.

See also supra, VII. a.

65. The relation of a person to the business of a corporation is one of fact, which is not open to inquiry on writ of error to a state court. New York, Parke, D. & Co., V. Roberts,

323

66. Alleged errors in the admission or rejection of evidence cannot be passed upon by the Supreme Court of the United States on appeal from a territorial court, where this cannot be done without examining the weight of the evidence and disregarding the facts as found. Young v. Amy, 127

67. The successive decisions of two courts in the same case, on questions of fact, are not to be reversed unless clearly shown to be erroneous. Smith v. Burnett, 756

d. Discretionary Rulings.

68. The denial of a motion to set aside a judgment will not be reversed unless a misuse or abuse of discretionary power plainly appears. Rio Grande I. & C. Co. v. Gildersleeve, 1103

69. The decision of a motion for leave to discontinue will not be reviewed on appeal except for abuse of the discretion of the court. Pullman's Palace Car Co. v. Central Transp. Co. 108

e. What Errors Warrant Reversal.

70. The rejection of pleas is immaterial, when the defendant had all the advantages that he could have had under them by virtue of another plea. Johnson v. Drew,

88

71. A claim that a jury separated before the verdict was returned is ineffectual, where that fact does not appear on the record, but it does appear that a sealed verdict was returned, under agreement of counsel for both parties in open court and in the presence of the defendant. Pounds v. United States,

62

firmance, notwithstanding error of an intermediate court in making a formal order of dismissal instead of an affirmance. Bosworth v. Terminal R. Asso.

941

to some of the defendants, the court has 74. On reversing a judgment for error as power to reverse it in toto and grant a new trial in regard to all the defendants, if it might work injustice if left intact as against one of the defendants only. Washington Gaslight Co. v. Lansden, 543

75. An appeal will not lie from a decision in exact accordance with the mandate on a previous appeal. United States v. New York Indians, 769

76. A mandate to the court of claims on reversal of its judgment, directing the entry of a judgment in favor of certain tribes of Indians for the value of lands granted them by a treaty, does not leave the court at liberty to redetermine who were the parties to. the treaty entitled to the benefit of its provisions.

Id.

77. Denial of motion to amend mandate. Central Nat. Bank v. Stevens, 97 78. Modification of decree. Smyth v. Ames, 197

APPEARANCE.

See ACTION OR SUIT, 4; APPEAL AND ERROR, 50.

APPRAISEMENT.

See DUTIES, 10, 11.

ARBITRATION.

1. An agreement to arbitrate, not under rule of court or within the terms of a statute enacted for such purpose, is a contract. District of Columbia v. Bailey,

118

72. The dismissal of an information should be affirmed when there was an absence of proof of material facts raised by the issues, and the case was submitted on the pleadings, although defenses raised by amended and supplemental answer may have been erroneously deemed by the court below to be sufficient. United States v. One Distillery, 929

VIII. JUDGMENT AND ITS EFFECT.

73. The cost of appellate proceedings should be paid by the appellant on final af

2. A common-law submission of a pending controversy for breach of contract, to a referee, is not within the power of the commissioners of the District of Columbia, under the act of June 11, 1878, chap. 180, § 3. providing that they shall make no contract and incur no obligation which is not provided for and approved by Congress.

Id.

ARCHIVES.

See EVIDENCE, 12.

ARMY.

See PRIZE, 2.

ARREST.

See REWARD.

ASSESSMENT.

See INJUNCTION, 7, 8; PUBLIC IMPROVE-
MENTS; TAXES, 17.

ASSIGNMENT.

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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