MacLeod v. Graven

• Decision Date: 02 March 1897
• Docket Number: 354.
• Citation: 79 F. 84
• Parties: MacLEOD et al. v. GRAVEN.
• Court: U.S. Court of Appeals — Sixth Circuit

79 F. 84

MacLEOD et al. v. GRAVEN.

No. 354.

United States Court of Appeals, Sixth Circuit.

March 2, 1897

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

TAFT Circuit Judge.

In this case a writ of error was sued out to a judgment in favor of Mrs. Graven, administratrix, against MacLeod, receiver rendered by the circuit court below for damages for the wrongful death of plaintiff's intestate. On April 14 1896, this court reversed the judgment of the circuit court and remanded the case, with instructions to award a new trial. MacLeod v. Graven, 19 C.C.A. 616, 73 F. 627. An application was made to Judge LURTON, as a member of this court, to allow a writ of error to the judgment of this court so as to permit a review thereof by the supreme court of the United States. The application has been referred by Judge LURTON for the consideration of the whole court. The right to such a writ of error is asserted upon the ground that MacLeod, the defendant in the court below, was a receiver appointed by that court; that the injury complained of was caused by the operation of an electric railroad by him as such receiver; that the suit against him was therefore one arising under the laws of the United States (Railway Co v. Cox, 145 U.S. 593, 12 Sup.Ct. 905); that on appeals or writs of error in such suits the judgments of this court are not final; and that, as this case involves more than $1,000, by the express terms of the last paragraph of section 6 of the circuit court of appeals act a review of the case by writ of error from the supreme court is provided.

The application presents the question whether, conceding that a writ of error from the supreme court will lie in this class of cases, it can lie in any case where the judgment of this court is not a final judgment. It is well settled that a judgment of an appellate court reversing the judgment of the trial court, and remanding the cause for further proceedings, is not a 'final judgment,' as that term is used in federal appellate procedure. Insurance Co. v. Kirchoff, 160 U.S. 374, 16 Sup.Ct. 318; Werner v. Charleston, 151 U.S. 360, 14 Sup.Ct. 356; Brown v. Baxter, 146 U.S. 619, 13 Aup.Ct. 260; Meagher v. Manufacturing Co., 145 U.S. 608, 12 Sup.Ct. 876; Rice v. Sanger, 144 U.S. 197, 12 Sup.Ct. 664; Johnson v. Keith, 117 U.S. 199, 6 Sup.Ct. 669; Bostwick v. Brinkerhoff, 106 U.S. 3, 1 Sup.Ct. 15; Houston v. Moore, 3 Wheat, 433.

Section 6 of the court of appeals act (26 Stat. 826) provides that 'the circuit courts of appeals established by this act shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the district court and the existing circuit courts in all cases other than those provided for' in the fifth section. The section then provides that in certain cases the judgment of the courts of appeal shall be final. The section further provides that in 'all cases not hereinbefore in ...