Supreme Court of United States.
*294 Mr. John T. Morgan for appellants.
Mr. Louis D. Brandeis for appellees. Mr. William H. Dunbar was on his brief.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
The act of March 3, 1891, c. 517, 26 Stat. 826, provides in section 6 that the Circuit Courts of Appeals shall have appellate jurisdiction to review judgments and decrees of the Circuit Courts in all cases in which a direct appeal is not allowed by section 5 to this court, and that the judgments and decrees of the Circuit Courts of Appeals shall be final in all cases in which the jurisdiction is dependent entirely on diversity of citizenship.
The jurisdiction referred to is the jurisdiction of the Circuit Court as originally invoked. Colorado Central Mining Co. v. Turck, 150 U.S. 138; Press Publishing Company v. Monroe, 164 U.S. 105; Ex parte Jones, 164 U.S. 691; American Sugar Refining Company v. New Orleans, 181 U.S. 277; Arkansas v. Kansas & Texas Coal Company, 183 U.S. 185.
*295 If after the jurisdiction of the Circuit Court attaches on the ground of diversity of citizenship, issues are raised, the decision of which brings the case within either of the classes set forth in section five, then the case may be brought directly to this court; although it may be carried to the Circuit Court of Appeals, in which event the final judgment of that court could not be brought here as of right. Loeb v. Columbia Trustees, 179 U.S. 472. If the jurisdiction of the Circuit Court rests solely on the ground that the suit arises under the Constitution, laws or treaties of the United States, then the jurisdiction of this court is exclusive, but if it is placed on diverse citizenship, and also on grounds independent of that, then if carried to the Court of Appeals, the decision of that court would not be made final, and appeal or writ of error would lie. American Sugar Company v. New Orleans, 181 U.S. 277.
The general intention of the act was to distribute the appellate jurisdiction and to permit an appeal to only one court. Robinson v. Caldwell, 165 U.S. 359.
In this case appellants did not attempt to take an appeal directly to this court from the Circuit Court, nor could they have done so since no question was so raised as to bring the case within either of the classes named in section 5. Cornell v. Green, 163 U.S. 75. The ground on which the jurisdiction of the Circuit Court was invoked was solely diversity of citizenship, and the record does not show anything to the contrary, so that the decree of the Circuit Court of Appeals cannot be regarded otherwise than as made final by the statute.
The question before us is whether this appeal was properly granted and can be maintained. In all cases where the decree or judgment of the Circuit Court of Appeals is made final by the statute, an appeal does not lie, but any such case may be brought here "by certiorari or otherwise." The latter words add nothing to our power, for if some other order or writ might be resorted to, it would be ejusdem generis with certiorari. The writ is the equivalent of an appeal or writ of error as declared by the statute, and it is issued in the discretion of the court.
The record filed in this case June 25, 1900, was entirely insufficient, *296 and appellants applied for certiorari to perfect it by bringing up the alleged lacking portions. We granted that application, and the omissions were supplied. This auxiliary writ did not operate to bring the case before us or in itself to add any support to the appeal, which must stand or fall according as the statute did or did not allow it to be taken. Many matters are urged, such as alleged lack of indispensable parties below and so on, as reasons why an appeal ought to lie, but our jurisdiction depends on the statute and cannot be enlarged by the supposed hardship of particular cases. Finally, it is argued that a large part of the property dealt with by the decree is situated in the State of Alabama and it is said that therefore the decrees of both courts are void for want of jurisdiction over the subject matter.
As the Circuit Court had jurisdiction over the mortgagor company, the company claiming under it, and the surviving cotrustee of complainant, and the trust deed was made and executed in Georgia, where part of the property was situated, the courts below may have assumed that the case came within Muller v. Dows, 94 U.S. 444; International Bridge Tramway Company v. Holland Trust Company, 52 U.S. App. 240; and kindred cases.
But we need not discuss the validity of the decrees in this regard. If the point had been raised in the Circuit Court and its decision would have justified an appeal directly to this court, no such appeal was taken. If its existence in the record justified a review of the decree of the Circuit Court of Appeals, the proper course was to apply for a certiorari. That course was taken in this case, and the application was denied. In view of repeated and well considered decisions of this court, some of which we have cited, we are unable to find any ground on which this appeal can be sustained.
Appeal dismissed.
