BADARACCO 'V. CERF.
The removal cases in 100 U. S. 457, and Foster v. Railway Co., 47 Fed. Rep. 379, come nearer to authority for defendant than any of the cases cited and relied on by counsel for the Central Trust Oompany, but in my judgment those cases are clearly distinguishable from this case. I am wholly unable to see how any controversy that may exist between the Oentral Trust Oompany and E. W; Marsh, either as to his claim by note against the Railroad Company as to the tax fi. fa. assigned to him, or otherwise, and the Central Trust Company, representing the bondholders, can be determined without the presence of the railroad company. Any judgment fixing and determining the rights of either Marsh or the trust company must involve the railroad company as a party, for in either case the jlldgment fixing the liability and priority of lien must be against it. The case, in my judgment, is controlled absolutely by the authorities first cited, and against the trust company on the question of separability. 2. It is unnecessary, in this view of the case, to determine whether or not the petition of removal is filed in time. If this were not true, a question of proper practice under the state law, not yet settled by the supreme court of the state, would arise. No opinion is expressed, therefore, as to whether the cause was removed in time, as it be remanded to the state court, on the ground that no separable controversy is shown such as would justify its removal An order remanding the case wiU·be entered.
BADARACCO v. CERF et aI. (Circuit Court of Appeals, Eighth Circuit. November 14, 1892.)
FEDERAL COURTS-APPELLATE JURISDICTION-CIRCUIT COURT OF ApPEAl,S.
By Act March 3, 1891, the entire federal appellate jurisdiction is divided between the supreme court and the circuit courts of appeals, by enumerating the classes of cases wherein the judgment of each court shall be final. McLish v. Roff, 12 Sup. Ct. Rep. 141 U. S. 661, followed. Cases wherein the judgment of the circuit court of appeals is "final," within the meaning of Act March 3, 1891, § 15, giving the right of appeal 110 such court from territorial supreme courts in such cases, are only those enumerated in the first clause of section 6; and no appeal to the circuit court of appeals lies in a case not there enumerated, although an appeal to the supreme court is denied by section 6, the amount in controversy .being less than $1,000. Mining Co. v. Ripley, 53 Fed. Rep. 7, apvlied.
2. SAME-FINAl, JUDGMENTS-REVIEW OF DECISIONS OF TERRITORIAL COURTS.
In Error to the Supreme Oourt of the Territory of New Mexico. Dismissed. W. B. Ohilders, for plaintiff in error. Before CALDWELL and SANBORN, Oircuit Judges, and SHIRAS, District Judge. SHIRAS, District Judge. This case comes before us on a writ of error to the supreme court of the territory of New Mexico. The ac-
. ion was;bmught originalllY:in.the district coUl't of the!8eOOnd judicial t districtof'tM.t territory to recover for certain goods .a.ndmerchandise sold by the detendants inetTor to the plaintiff in error. In the dec· it:'W1:tS averred that L. Cerf and Jacob Cerf, copartners trading under the,:tirm name of L. Cerf & Co., were residents of the city of St. Loui$, in th,e state of Missouri, and that G. the defendant, was a resident ofth.ecounty of Bernalillo,.in the territory of New Mexico. UpQnthe trial before the court and jury there was a verdict in favor. of the plaintiffs below for the sum of $245, and judgment Was rendered thereon. On appeal to the supreme court of the territory, the judgment was affirmed, (27 Pac. Rep. 504;) and the defendant now· brings the case ,before this court, assuming that the right !'!O to do is granted by the provisions of section 15 of the act of congress approved March 3, 1891. In the case of Mining Co. v. Ripley, 53 Fed. Rep. 7, we were called upon to consider the extent of the appellate jurisdiction of this court over the i"dgments and decrees rendeJ;ed.in tbe supreme court of the telTitory of ,New; Mewco; ;andthe conclusion was therein reached that such jurisdiction only in cases coming within some one or more otthe classes of cases defined. in the first claulle of section 6 of the act of Maroh 3,1891, to wit, cases in admiralty, cases arising un· der the criminal, revenue, or patent of the United States, and cases wherein the jurisdiction is dependent entirely upon the oppo· site parties being aliensalld citizens of the United States or citizenR of different states. The record now before us shows clearly that this case does not come within anyone or more of the classes thus defined. In support of the jurisdiction, it is suggested by counsel that, as the invoh:-ed is less than $1,000, the case could I,lot be carried from this court to the supreme court on a writ of error, by reason of the limitation found in the last clause of section 6 of the act of March 3, 1891; that the judgment of this court would therefore be final, and hence jurisdiction exists. The argument is plausible, but, taking I into consideration the pther provisions of the statute, we deem it un· sound. As is said by 'the supreme court in McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. Rep. 118, ,the act of 1891 "provides for the distribution of the entire appellate jurisdiction of our national judicial system between the supreme court of the United States and the circuit court of appeals, therein established, by designating the classes of cases in respect of which each of those two courts shall, respectively, have final jurisdiction." " Section 5 of the act defines the classes of cases in which an appeal or writ of error takes the given case directly to the supreme court. . ection 6 then declares that the circuit courts of appeals shall have S jurisdiction in all cases other than those enumerated in section 5, un· less otherwise provided by law; and thus a hearing by appeal or on writ of error before an appellate court is provided for in all cases tria· bleorigiruilly in a district or circuit court of the United States. Of the cases over which jurisdiction is thus conferred upon the circuit courts of appeals, a further is made, by the provisions of section 6, into two classes of cases, to wit, that in which the judgment of the circuit court of appeals is final, and that in which it is not. The
first clause of the section expressly deelares that the judgments or decrees of the circuit courtS of appeals shall be final in certaincitses therein specially classified; and theri' in the last clause of the is found the declaration that, "in all cases not hereinbefore in this sootion made final, there shall be of right an appeal or writ of error or review of the case by the supreme court of the United States, where the matter in controversy shall exceed one thousand dollars, besides costs." This clause expressly points to the first clause of the section as the one which defines the classes of cases wherein the judgment of the circuit court of appeals is a finality; and having, so to speak, laid these toone side, it then proceeds to declare what appellate jurisdiction may be exercised by the supreme court over cases wherein the judgment of the circuit court of appeals is not final, and enacts th!tt, in all cases wherein the judgment of the latter court is not final, then of right the same may be carried, by appropriate methods, before the supreme court, provided the matter in controversy exceeds $1,000, exclusive of costs. This proviso limits the jurisdiction of the supreme court, but it does not enlarge that of the circuit courts of appeals. The last clause of the section clearly recognizes the first clause thereof as the one which defines the wherein the jUdgment of the cu-· cuit courts of appeals is to be deemed final, and in that clause the amount involved in the controversy is not made in any sense an element for determining the judgment of the circuit courts of peals shall or shall not be final. ' It is true that the proviso in the last clause of the section has the effect of preventing cases involving $1,000 or less from being taken to the supreme court, and i:Q. that sense the judgment or decree of the circuit courts of appeals in such cases terminates the litigation; but it is not declared in the statute that such judgments or decrees are final, in the sense in which that term is used in defining in what classes of cases the judgments or decrees of the circuit courts of appeals are not reviewable by the supreme court. As already said, section 6 first defines the jUrisdiction of, the circuit courts of appeals over cases heard in thedi!'!trict and circuit courts, and then subPivides this jurisdiction into two general divisions,-the one including cases in which the judgments of the circuit courts of appeals are final, and the othel' cases in which sllch judgments are not final. Having established these two divisions, and having clearly defined the classes of cases belonging to each division, the section then proceeds, in the last clause, to deal with the division not made final, and declares thatin cases falling within this division a right to an appeal to or writ of error from the supreme court shall exist, providing the matter in controversy exceeds $1,000, exclusive of costs. This limitation upon the jurisdiction of the supreme court cannot, however, be construed to enlarge, by mere inference, the classes of cases in which the judgments of the circuit courts of appeals are declared by the statute to be finlj,l. When, therefore, in section 15, it is declared that the circuit courts of appeals shall have appellate jurisdiction to review the judgments and of the supreme courts of the territories "in ,cases in 'VI7hich the judgments of the Circuit courts of appeals are made final by this
act," the reference is to1;ll.ec.lasses of cases enumerated in the first cla1,1$e of section 6; and, unless a given be brought within someone or more of the classes therein defined, the judgment or c,lecree of the supreme court of the territory cannot be reviewed by a circuit court ·of appeals. Unless this be the construction given to the we would have, following the contention of counsel for theplainti:ff in error, the absurd result that the judgments of the supreme courts of the territories could be appealed to the circuit courts of appeals in all cases wherein the amount in controversy does not exceed .'1,000, but in all cases wherein the amount in controversy ex· sum no appeal could be taken. No possible reason can be aq,v,anced in support of the proposition that congress intended to erearright of appeal applicable to cases involving small amounts, and to 1113J:lY .the right in cases involving large sums. The absurdity of tM,result is the strongest possible argument a,gainst the correctness a construction qf the statute; for, as is said in Lau Ow Bew v. U. S. 47--59, Sup. Ct. Rep. 517, "nothing is better setthat. statutes should receive a sensible construction, such alit;will, effectuate the legislative intention, and, if possible, so as to awi4;jan unjust ()r absurd result." We reaffirm, therefore, the conclJIlrio;1jl rel,Whed in of Mining Co" v. Ripley, supra, that the jurisdiction of this court over.,the judgments and decrees of th,e supreme court of the territory of New Mexico is strictly limited to, C8,$es coming withhl some one or more' of the classes enumerated in the first clause of section 6 of the act of March 3, 1891, and in rato which it is expressly declared that the judgment of the circuit courts of appeals therein is final. does n()t appear that the case at bar comes within anyone of the enumerated classes, it follows that the writ of error be dismissed, at cost of plaintiff in alTor, for want of jurisdie-
MERRILL T. FLOYD. (Olrcult Court of Appeals, Fll"Bt Olreult. November 10. 1892.) No. 23.
LAI'!'B.u,-TRIALS NOT AOCORDING TO COMMON LAW. When a case is tried in a tederal court otherwise than according to the strict , ClOurseot the common law, the circuit court ot appeals has nojurisdiction as to exqeptlops taken at the trial, or as to the efI<:jct of the facts found, except as by Rev. St. §§ 649, 700, in cases where a jU1'Y is waived.
... SAMB':"WAIVER OF JURY.
But to authorize a review under these sections the walverof a jury trial must be unconditional, and by a writing which sets forth the whole agreement; anq hence, where the stipulation is merely that the cllSe sha.ll be marked, "Jurv waived tentatively, "there can be no such ,review. although the parties have acted on the agree"ment, and thus rendered it
In Error to the Circuit Court of the United States for the District of MasSachusetts. 'Action by Byron B. Floyd' against Ezra F. Merrill for fraudulent resentations. Tri.li.l to the court, which filed its "findings of fact and verdict." A motion to set aside the "verdict" was thereafter overruled. i