OpenJurist

108 US 566 Baltimore & O R Co

108 U.S. 566

2 S.Ct. 876

27 L.Ed. 812

Ex parte BALTIMORE & O. R. CO., Petitioner.*

May 7, 1883.

John K. Cowen and E. J. D. Cross, for petitioner.

WAITE, C. J.

1

This petition shows that the Baltimore & Ohio Railroad Company brought an action of replevin against John E. Hamilton, in the circuit court of the United States for the eastern district of Virginia, to recover the possession of certain railroad cars; that a summons for the defendant and a writ of replevin for the property were issued in the suit; that the defendant, Hamilton, was duly served with the summons; that the property sued for was taken by the marshal under the writ of replevin and delivered to the company; that a declaration was filed, and that before pleading thereto Hamilton appeared and moved to vacate the writ of replevin because the court had no jurisdiction to issue the same. This motion was heard, and thereupon the court ordered and adjudged 'that said writ be quashed and vacated, and all proceedings subsequent to be of no avail;' and that the action 'be dismissed at at the costs of the plaintiff, for which execution may issue,' etc.

2

This is a final judgment in the action, and, if the case is otherwise within our jurisdiction, subject to review here on a writ of error. Upon such a writ the question of the right to maintain the action on which the case was adjudged below, if presented by the record, may be re-examined here. This being so, a writ of mandamus cannot issue. It has been often held that mandamus cannot be used to perform the office of a writ of error. Ex parte Hoard, 105 U. S. 580; Ex parte Loring, 94 U. S. 419.

3

In Ex parte Ry. Co. 103 U. S. 796, it was expressly decided that a writ of mandamus could not be used to bring up for review a judgment of the circuit court on a plea to the jurisdiction. That is practically what is asked in this case. The writ is denied.

*

S. C. 16 Fed. Rep. 181.