Menge v. Warriner
| Decision Date | 17 February 1903 |
| Docket Number | 1,175. |
| Citation | 120 F. 816 |
| Parties | MENGE v. WARRINER. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank E. Rainold, for plaintiff in error.
Henry P. Dart and Benj. W. Kernan, for defendant in error.
Before PARDEE and SHELBY, Circuit Judges.
This action was brought by Charles Menge, a citizen of Louisiana against Elder, Dempster & Co., a corporation under the laws of Great Britain, and Matthew Warriner, a subject of Great Britain, residing in New Orleans. It is a suit to recover damages for personal injuries alleged to have been received by the plaintiff. It is alleged in the petition that both defendants are liable in solids to the plaintiff, and the prayer is for judgment against both defendants for $25,000. The defendants separately filed exceptions to the petition averring that the petition showed no cause of action against them. The exceptions were tried, and the court, on April 7 1902, 'ordered that the exceptions of Matthew Warriner be sustained, and that the suit as to him be dismissed, but that the exceptions of Elder, Dempster & Co. be overruled'; and time was allowed for answer. On April 16, 1902, the defendant Elder, Dempster & Co., filed an answer, denying the allegations of the petition. On May 27, 1902, the case was, by order of the court, continued till November 19, 1902. On June 4, 1902, the plaintiff, Charles Menge, applied to the Circuit Court for a writ of error, which was allowed on that day.
It will be seen from the foregoing statement that the action was brought against two defendants; that the demurrer of one of them was sustained and the action dismissed as to him; that the other defendant answered; and while the case was pending for trial on the issues joined by one defendant, the plaintiff sued out a writ of error to review, in this court, the judgment dismissing the suit as to the other defendant.
By section 6 of the judiciary act of March 3, 1891 (U.S. Comp. St. 1901, p. 549) this court has jurisdiction if there has been a 'final decision' in the Circuit Court. 26 Stat. 828. The question of the finality of a judgment or decree for purposes of review by writ of error or appeal in the federal courts is not affected by the procedure in the state courts, but must be governed by the rules established by federal legislation and by the decisions of the federal courts. The Chateaugay Company, Petitioner, 128 U.S. 544, 9 Sup.Ct. 150, 32 L.Ed. 508; Bronson v. Schulten, 104 U.S. 410, 26 L.Ed. 997; Andes v. Slauson, 130 U.S. 435, 9 Sup.Ct. 573, 32 L.Ed. 989.
In United States v. Girault, 11 How. 21, 13 L.Ed. 587, a judgment was had in the United States Circuit Court in favor of some of the defendants, but the case left undecided as to one defendant. The plaintiff sought to review the judgment by writ of error. The Supreme Court dismissed the case for want of jurisdiction, holding that the judgment was not final. In Hohorst v. Packet Company, 148 U.S. 262, 13 Sup.Ct. 590, 37 L.Ed. 443, a bill in equity was filed against several defendants. It was dismissed as to one defendant, but, so far as the record disclosed, was left pending against the others. It was held by the Supreme Court, the chief justice delivering the opinion, that the decree of dismissal was not final, so as to support an appeal.
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...above, see Hewitt v. Charles R. McCormick Lumber Co. of Delaware, 2 Cir., 22 F.2d 925; Bush v. Leach, 2 Cir., 22 F.2d 296; Menge v. Warriner, 5 Cir., 120 F. 816; United States v. Girault, 11 How. 22, 31, 52 U.S. 22, 31, 13 L.Ed. 587. The Curtis and Williams cases cited in the opinion were q......
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...posed, whether this court has jurisdiction to entertain the appeal, must be answered in the negative upon the authority of Menge v. Warriner, 5 Cir., 120 F. 816, General Electric Co. v. Allis-Chalmers Co., 3 Cir., 194 F. 413, and Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct......
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