Nickels v. Pullman Co.

Decision Date23 October 1919
Docket Number1704.
PartiesNICKELS v. PULLMAN CO.
CourtU.S. Court of Appeals — Fourth Circuit

W. H Robertson and W. H. Rouse, both of Bristol, Va. (Morison Morison & Robertson and A. K. Morison, all of Bristol, Va on the brief), for plaintiff in error.

R. E Scott and H. G. Buchanan, both of Richmond, Va., for defendant in error.

Before PRITCHARD, KNAPP, and WOOD, Circuit Judges.

KNAPP Circuit Judge.

Claiming damages for a personal injury, plaintiff in error brought suit in the Western district of Virginia, where she resided, against the Pullman Company, an Illinois corporation. She made various attempts to serve the defendant with process, by serving on certain alleged agents and by publication, but all were held to be ineffectual. In consequence her complaint was dismissed for want of jurisdiction, because the defendant had not been brought into court, and she seeks by this writ of error to reverse the ruling. The defendant here moves to dismiss the writ, on the ground that the decision below was reviewable only by the Supreme Court on direct appeal thereto, and therefore this court is without jurisdiction. This motion is based on sections 128 and 238 of the Judicial Code (Comp. St. Secs. 1120, 1215), the material parts of which are as follows:

'Sec. 128. The Circuit Courts of Appeals shall exercise appellate jurisdiction to review by appeal or writ of error final decisions in the District Courts * * * in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court, as provided in section 238, unless otherwise provided by law.'

'Sec. 238. Appeals and writs of error may be taken from the District Courts * * * direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue, in which case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.'

The sole question passed upon by the court below was the question of its own jurisdiction, and hence the sole question for review is whether or not that court had jurisdiction. In such case, and where, as here, the trial court holds that it has not jurisdiction, it seems definitely settled that review can be had only by direct resort to the Supreme Court. In United States v. Jahn, 155 U.S. 109, 114, 15 Sup.Ct. 39, 39 L.Ed. 87, that court classifies the cases that may arise under the sections quoted, and defines their application to each of the described classes. Of the first class, which obviously includes the instant case, it is said:

'If the jurisdiction of the Circuit Court (now District Court) is in issue and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified and take his appeal or writ of error directly to this court.'

This ruling has been followed and applied in numerous cases, among which are Shephard v. Adams, 168 U.S. 618, 18 Sup.Ct. 214, 42 L.Ed. 602; Board of Trade v. Hammond Elevator Co., 198 U.S. 424, 25 Sup.Ct. 740, 49 L.Ed. 1111; Kendall v. Am. Automatic Loom Co., 198 U.S. 477, 482, 25 Sup.Ct. 768, 49 L.Ed. 1133; Mechanical Appliance Co. v. Castleman, 215 U.S. 437, 30 Sup.Ct. 125, 54 L.Ed. 272; P. & R. Ry. Co. v. McKibbin, 243 U.S. 264, 37 Sup.Ct. 280, 61 L.Ed. 710. In the last-named case, a personal injury action, the court says:

'Whether the corporation was doing business within the state and whether the person served was an authorized agent are questions vital to the jurisdiction of the court. A decision of the lower court on either question, if duly challenged, is subject to review in this court; and the review extends to findings of fact as well as to conclusions of law. Herndon-Carter Co. v. Norris, Son & Co., 224 U.S. 496 (32 Sup.Ct. 550, 56 L.Ed. 857); Wetmore v. Rymer, 169 U.S. 115 (18 Sup.Ct. 293, 42 L.Ed. 682).'

It is likewise settled by these decisions that the jurisdiction of a federal court as such is involved in quashing service of process and dismissing suit because the defendant has not been brought into court. And it is further settled that the Circuit Court of Appeals is without jurisdiction in a case directly appealable to the Supreme Court, since in such case the jurisdiction of the Supreme Court is exclusive. United States v. Larkin, 208 U.S. 333, 28 Sup.Ct. 417, 52 L.Ed. 517.

This court would undoubtedly have jurisdiction, if the court below, in addition to the question of jurisdiction, had decided other and independent questions of general law (Boston & Maine R. Co. v. Gokey, 210 U.S. 155, 28 Sup.Ct. 657, 52 L.Ed. 1002); and plaintiff contends at length that such questions were decided. But this contention is plainly without merit. The questions referred to, which the court did decide, were in no sense independent, but...

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3 cases
  • Nickels v. Pullman Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 7 Agosto 1920
  • Hoffman v. McClelland
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 21 Noviembre 1922
    ... ... court is without jurisdiction does not make a decree to that ... effect reviewable by this court. Nickels v. Pullman Co ... (C.C.A.) 263 F. 551 ... The ... failure of the court formally to certify the question of ... jurisdiction did not ... ...
  • Carter v. Mickelberry
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 6 Enero 1920

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