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the supreme court of a state, in rendering a final judgment, decides a federal question against the plaintiff in error, and also decides against him upon a question not federal in its nature, and the decision upon either one of the grounds is broad enough to support the judgment of the state court, the federal supreme court will affirm the decision of the state court, without considering the federal question or expressing any opinion on it, although it was wrongly decided by the state court, or else dismiss the writ of error.51 If the judgment of the state. court rests on two grounds, one involving a federal question and the other not, or if it does not appear on which of two grounds the judgment is based, and the ground independent of the federal question is sufficient in itself to sustain it, the federal supreme court will not take jurisdiction.52

The federal supreme court, in a carefully considered case, stated the doctrine on this subject as follows:

"Finally, we hold the following propositions on this subject, as flowing from the statute as it now stands:

"1. That it is essential to the jurisidiction of this court over the judgment of a state court, that it shall apear that one of the questions mentioned in the act must have been raised, and presented to the state court.

"2. That it must have been decided by the state court, or that its decision was necessary to the judgment or decree, rendered in the case.

"3. That the decision must have been against the right claimed or asserted by plaintiff in error under the constitution, treaties, laws or authority of the United States.

"4. These things appearing, this court has jurisdiction and must examine the judgment so far as to enable it to decide. whether this claim of right was correctly adjudicated by the

state court.

51 Hale v. Akers, 132 U. S. 554565 (33:442); Murdock v. Memphis, 20 Wall. 590-642 (22:429); Jenkins v. Lowenthall, 110 U. S. 222 (28.129); Giles v. Teasley, 193 U. S. 146-167 (48:655); New Orleans v. New Orleans Waterworks Co., 142 U. S. 79 (35:943); Eustis v. Bolles, 150 U. S. 361 (37:

1111); Dower v. Richards, 151 U. S. 658 (38:305); Wader v. Lawder, 165 U. S. 624 (41:851).

52 Allen v. Arguimbau, 198 U. S. 149-156 (49:990); Dibble v. Bellingham Bay Land Co., 163 U. S. 63 (41:72); Klinger v. Missouri, 13 Wall. 257 (20:635); Johnson v. Risk, 137 U. S. 300 (34:683).

"5. If it finds that it was rightly decided, the judgment must be affirmed.

"6. If it was erroneously decided against plaintiff in error, then this court must further enquire, whether there is any other matter or issue adjudged by the state court, which is sufficiently broad to maintain the judgment of that court, notwithstanding the error in deciding the issue raised by the federal question. If this is found to be the case, the judgment must be affirmed without inquiring into the soundness of the decision on such other matter or issue.

"7. But if it be found that the issue raised by the question of federal law is of such controlling character that its correct decision is necessary to any final judgment in the case, or that there has been no decision by the state court of any other matter or issue which is sufficient to maintain the judgment of that court without regard to the federal question, then this court will reverse the judgment of the state court, and will either render such judgment here as the state court should have rendered, or remand the case to that court, as the circumstances of the case may require." 53

§ 437. Writ of error lies to review final judgment only.—A writ of error from the federal supreme court to a state court lies to review a final judgment only; and unless the judgment of the state court possesses the quality and character of finality the supreme court has no jurisdiction, and the writ of error will be dismissed when it appears that the judgment sought to be reviewed is not final. The language of the judiciary act is that, "a final judgment or decree in any suit in the highest court of a state, in which a decision in the suit could be had," where one of the enumerated federal questions is involved.55

53 Murdock v. Memphis, 20 Wall. 590-642 (22:429).

54 Houston v. Moore, 3 Wheat. 433-435 (4:428); Bostwick V. Brinkerhoff, 106 U. S. 3-4 (27: 73); Johnson v. Keith, 117 U. S. 199 (29:888); Union Mutual Life Ins. Co. v. Kirchoff, 160 U. S. 374378 (40:461); Brown v. The Marion National Bank, 146 U. S. 619-620 (36:1106); Rice v. Sanger, 144 U. S. 197 (36:403); Meagher v. Min

nesota Thresher Mfg. Co., 145 U. S. 608 (36:834); Hume v. Bowie, 148 U. S. 245 (37:438); Werner v. Charleston, 151 U. S. 360 (38:192); Kimball v. Evans, 93 U. S. 320-321 (23:920); Drake v. Kochersperger, 170 U. S. 303 (42:1046); California National Bank v. Stateler, 171 U. S. 447-449 (43:233); Schlosser v. Hemphill, 198 U. S. 173-176 (49:1000).

55 U. S. Rev. Stat. sec. 709.

56

§ 438. Same-Final judgment defined.-The rule is well settled and of long standing, that a judgment or decree of a state court to be final, within the meaning of that term, as used in the federal judiciary act giving the federal supreme 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 of it in the supreme court the state court would have nothing to do but to execute the judgment or decree it had already rendered; and, consequently, it has been uniformly held that a judgment of reversal by a supreme court of a state, with leave for further proceedings in the trial court, cannot be carried to the federal supreme court on writ of error." The settled rule is that if a superior court makes a decree fixing the liability and rights of the parties, and refers the case to a master or subordinate court for a judicial purpose, such, for instance, as a statement of account upon which a further decree is to be entered, the decree is not final.57 The face of the judgment is made the test of its finality, and the supreme court cannot be called on to inquire whether, when a case is sent back, the defeated party might or might not make a better case.58 A judgment of a state supreme court reversing the judgment of the lower court, with directions to sustain a demurrer to plaintiff's petition, is not a final judgment reviewable on writ of error, where the statutes of the state permit an amendment of the petition after the demurrer has been sustained.59

56 Bostwick v. Brinkerhoff, 106 U. S. 3-4 (27:73); Union Mutual Life Ins. Co. v. Kirchoff, 160 U. S. 374-378 (40:461); Schlosser V. Hemphill, 198 U. S. 173-176 (49: 1000); Haseltine v. Central National Bank, 183 U. S. 130-132 (46:117); McComb v. Knox County, 91 U. S. 1-2 (23:185); Moore v. Robbins, 18 Wall. 588 (21:758); St. Clair County v. Livingston, 18 Wall. 628 (21:813); Zeller v. Switzer, 91 U. S. 487 (23:366); Cincinnati Street Ry. Co. v. Snell, 179 U. S. 395-398 (45:248); Great Western Telegraph Co. v. Burnham, 162 U. S. 339-346 (40:991).

57 California National Bank V.

Stateler, 171 U. S. 447-449 (43: 233); Craighead v. Wilson, 18 How. 199 (15:668); Keystone Manganese & Iron Co. v. Martin, 132 U. S. 91 (33:275); Lodge v. Twell, 135 U. S. 232 (34:153); McGourkey v. Toledo & Ohio C. Ry. Co., 146 U. S. 536 (36:1079); Union Mutual Life Ins. Co. v. Kirchoff, 160 U. S. 374 (40:985); Hollander v. Fechheimer, 162 U. S. 326 (40: 985).

58 Haseltine v. Central National Bank, 183 U. S. 136 (46:17); Schlosser v. Hemphill, 198 U. S. 173-176 (49:1000).

59 Clark v. City of Kansas City, 172 U. S. 334-338 (43:467).

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§ 439. To what court of the state the writ of error should be directed.-Inasmuch as each state was, under the federal constitution, left free to establish its own judicial system, and define the jurisdiction of its own courts, it was contemplated by the congress which passed the original judiciary act that suits would arise involving a federal question which, according to the state law, could not be carried to the highest court of the state, and it was, therefore, provided by the statute that the writ of error should run to "the highest court of a state in which a decision of the suit could be had;" 60 and, accordingly, in one of the great and leading cases, and in which the jurisdiction was most strenuously contested, the writ of error was directed to the "Court of Hustings for the borough of Norfolk," in the state of Virginia, "it being the highest court of law or equity of that state having jurisdiction of the case, and in a more recent case a writ of error from the federal supreme court was directed to the "corporation court of the city of Alexandria, state of Virginia," that being the highest court in the state in which a decision in the suit could be had.62 If a decision of a suit can be had in the highest court of a state, the federal supreme court must wait for such decision before it can take jurisdiction, and it can then only examine the judgment of that court; but if the suit is one of which the highest court in the state cannot take jurisdiction, the federal supreme court may re-examine the judgment of the highest court, which under the laws of the state could decide it; and it has long been settled that if a suit cannot be taken to the highest court of a state, except by leave of the court itself, a refusal of the court upon proper application made to grant the leave, is equivalent to a judgment of affirmance, and is such a final judgment as may be made the basis of proceedings under the appellate jurisdiction of the federal supreme court, but in such case it must affirmatively appear from the record that an application for the allowance of an appeal or writ of error to the highest court of the state was made and refused.64

60 U. S. Rev. Stat. sec. 709.

61 Cohens v. Virginia, 6 Wheat. 264-448 (5:257).

62 Gregory v. McVeigh, 23 Wall. 294-307 (23:156).

63 Gregory v. McVeigh, 23 Wall. 294-307 (23:156); Winsdor v. Mc

63

Veigh, 93 U. S. 274-284 (23:914); Bacon v. Texas, 163 U. S. 207-228 (41:132); Stanley v. Schwalby, 162 U. S. 255 (40:960); Clark v. Pennsylvania, 128 U. S. 395 (32:487).

64 Fisher v. Carrico, 122 U. S. 522-527 (30:1192).

§ 440. Same-The writ should run to the court where the record remains. It was shown in a previous part of this chapter, that a writ of error as defined by the common law, and within the meaning of the federal judiciary act, is a writ in the nature (1) of a certiorari to remove a record upon which a judgment has been given from an inferior court of record into a superior court, and (2) in the nature of a commission to the judges of the superior court to examine the record, and, on such examination, to affirm or reverse the judgment according to law, and that, in removing the record the writ acts, not upon the parties, but upon the record and the court having custody of it: 65 and it is, therefore, a fundamental rule that, in the exercise of appellate jurisdiction by writ of error, the writ must be directed to the court where the record remains; and if the court of a state, after deciding a cause, acting in conformity to the laws of the state, remits the record to an inferior court where the judgment is entered and the record remains, the writ of error should run to the inferior court."

66

§ 441. Same Same-When the writ of error is issued before the record is sent down to the inferior court.-Although the rule is firmly established that, when the highest court of the state, in obedience to the state practice and procedure, remits the record, after decision, to the inferior court, the writ should run to the inferior court, yet it is also settled that if the writ of error be issued before the state supreme court has actually

65 Ante, secs. 422, 423.

66 Atherton v. Fowler, 91 U. S. 143-149 (23:265). Gelston v. Hoyt, 3 Wheat. 246-335 (4:381); Hoagland v. Wurts, 105 U. S. 701-703 (26:1109); Polleys v. Black River Improvement Co., 113 U. S. 81-84 (28:938); Wedding v. Meyler, 192 U. S. 573-585 (48:570); Lee v. Johnson, 115 U. S. 48-53 (29:570); People v. Squire, 145 U. S. 175-191 (36:666); Rothschild v. Knight, 184 U. S. 334-342 (46:573); McDonald v. Massachusetts, 180 U. S. 311-313 (45:542); Bacon v. Texas, 163 U. S. 207-228 (41:132); Stanley v. Schwalby, 162 U. S. 255-283 (40:960); Gregory v. McVeigh, 23

Wall. 294 (23:156); Cohens v. Virginia, 6 Wheat. 264-448 (5:257); Clark v. Pennsylvania, 128 U. S. 395 (32:487); Fisher v. Carrico, 122 U. S. 522-527 (30:1192).

67 Atherton v. Fowler, 91 U. S. 143-149 (23:265); Gelston v. Hoyt, 3 Wheat. 246-335 (4:381); Hoagland v. Wurts, 105 U. S. 701-703 (26:1109); Polleys v. Black River Improvement Co., 113 U. S. 81-84 (28:938); Wedding v. Meyler, 192 U. S. 573-585 (48:570); Lee v. Johnson, 115 U. S. 48-53 (29:570); People v. Squires, 145 U. S. 175191 (36:666); Haddock v. Haddock, 201 U. S. 562-633 (50:867).

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