Railroad Company v. Wiswall

Decision Date01 October 1874
Citation23 L.Ed. 103,23 Wall. 507,90 U.S. 507
CourtU.S. Supreme Court

ON motion to dismiss a writ of error to the Circuit Court for the Southern District of Illinois. The case was this:

Wiswall, a citizen of Illinois, sued, in one of the inferior State courts of the State just named, the Chicago and Alton Railroad Company. The company conceiving that the case was properly cognizable in the Circuit Court of the United States for that district—the Southern District of Illinois—got an order from that court, the court below, commanding the State court to send the record to it. This the State court did. However, upon looking further into the matter, the Circuit Court was satisfied that it had no jurisdiction, and on motion of the plaintiff remanded the case to the State court. To that remand the railroad company took a writ of error from this court, and this writ it was which Wiswall now moved to dismiss; the ground of the motion being that the remand was not a 'final' judgment or decree, and that the proper proceeding of the company was a motion for mandamus on the court below* to act, and not by writ of error to review what was done.

Mr. E. C. Brearly, in support of the motion; Mr. P. Phillips, contra.

The CHIEF JUSTICE delivered the opinion of the court.

The writ of error is dismissed upon the authority of Insurance Company v. Comstock.** The order of the Circuit Court remanding the cause to the State court is not a 'final judgment' in the action, but a refusal to hear and decide. The remedy in such a case is by mandamus to compel action, and not by writ of error to review what has been done.***

*** King v. The Justices of Gloucestershire, 1 Barnewall & Adolphus, 1; 1 Chitty's General Practice, 736; Ex parte Bradstreet, 7 Peters, 647; Ex parte Newman, 14 Wallace, 165.

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65 cases
  • Baines v. City of Danville
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 10, 1964
    ...further prosecutions were authorized. 18 Baines v. City of Danville, 4 Cir., 321 F.2d 643. 19 24 Stat. 552. 20 Chicago & A. R. Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 23 L.Ed. 103; In re Pennsylvania Co., 137 U.S. 451, 11 S. Ct. 141, 34 L.Ed. 21 Chicago & A. R. Co. v. Wiswall, 90 U.S. (23 W......
  • People of State of New York v. Galamison
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 26, 1965
    ...final judgment subject to appeal under what is now 28 U.S.C. § 1291, but could be tested only by mandamus, Chicago & Alton R.R. v. Wiswall, 90 U.S. (23 Wall.) 507, 23 L.Ed. 103 (1875), and the failure of the framers of the Civil Rights Act of 1964 to amend 28 U.S.C. § 1292(a) to add remand ......
  • Yarbrough v. Blake
    • United States
    • U.S. District Court — Western District of Arkansas
    • January 8, 1963
    ...has been furthered not only by the refusal of the appellate courts to hear appeals from orders of remand, see Chicago & A. Railroad Co. v. Wiswall, 1875, 23 Wall. 507, 23 L.Ed. 103, but also by their refusal to entertain a petition for mandamus to review such an order, see United States v. ......
  • Rothner v. City of Chicago
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 5, 1989
    ...has been settled since 1872. See Insurance Co. v. Comstock, 83 U.S. (16 Wall.) 258, 270, 21 L.Ed. 493 (1872); Railroad Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 23 L.Ed. 103 (1874), neither of which depended on the predecessors to Sec. 1447(d). See also, e.g., McLaughlin v. Hallowell, 228 U.S......
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