149 U.S. 580 (1893), 1280, Loeber v. Schroeder

Docket Nº:No. 1280
Citation:149 U.S. 580, 13 S.Ct. 934, 37 L.Ed. 856
Party Name:Loeber v. Schroeder
Case Date:May 10, 1893
Court:United States Supreme Court

Page 580

149 U.S. 580 (1893)

13 S.Ct. 934, 37 L.Ed. 856




No. 1280

United States Supreme Court

May 10, 1893

Submitted May 1, 1893




A writ of error will not lie to review an order of the highest court of a state overruling a motion to quash a fieri facias. The refusal to quash a writ is not a final judgment within the contemplation of the Judiciary Acts of the general government.

It is settled that the attempt for the first time to raise a federal question after judgment and on petition for rehearing comes too late. The motion in this case, to quash the fieri facias on the ground that the order of the court directing it to issue was void stands upon no better footing in such respect than a petition for rehearing would have done.

The case is stated in the opinion.

Page 581

JACKSON, J., lead opinion

MR. JUSTICE JACKSON delivered the opinion of the court.

This writ of error to the Court of Appeals of the State of Maryland is brought to review and reverse a judgment of that court affirming an order of Circuit Court No. 2, of Baltimore City, overruling a motion of the plaintiff in error to quash a writ of fi. fa. issued against him in pursuance of a decree entered in the Court of Appeals in April, 1892. The defendant in error moves to dismiss the [13 S.Ct. 935] cause for want of jurisdiction. This motion is based on two grounds, viz., first, that a writ of error will not lie to an order overruling a motion to quash an execution, because it is not a final judgment or decree within the meaning of the federal statutes; secondly, that no federal question is involved in the case.

It appears from the record that the defendant in error, J. Henry Schroeder, as administrator of Catherine Loeber, deceased, on July 12, 1890, filed his bill of complaint in Circuit Court No. 2, of Baltimore City, against the plaintiff in error, John Loeber, in which it was alleged that the plaintiff's intestate, in 1882, loaned to her husband the sum of $8,000, being a part of her separate estate, on condition that he should pay said sum of money, on her death, to her children, and that said John Loeber, who was the husband of the intestate, agreed to take said money upon that condition as a loan from his wife. The complaint further charged that the defendant, John Loeber, had never repaid said sum of money, and that he denied that the same was a part of the estate of his deceased wife, and prayed for an order of the court directing and requiring that he should bring said money into court, to be invested in the name of his deceased wife's children; that the same might be declared a lien upon property described in the bill, which had been improved with the fund borrowed, and for such further relief...

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