6 -- 7 statutory limitation, or by a limitation contained in an order requiring claims to be presented within a specified period, or by laches in equity or admiralty irrespective of any statutory limitation; whether the bill states a case of equitable cognizance; whether the bill complies with Equity Rule 94; and perhaps whether, although nominally against an individual, it is in reality a suit against a State, are not of jurisdiction. The questions whether there existed the necessary difference of citizenship, or a Federal question; 10 whether the value of the matter in dispute was sufficient to give a Circuit Court jurisdiction; whether a District Court acquired jurisdiction over the defendant by valid service; 12 whether a petition for a removal was filed in proper time; 13 whether a District Court in a proceeding in admiralty for a limitation of the liability of a ship-owner, after final disposition of all points affecting the right of the petitioners to a limitation of their liability, has power to enter a decree in personam against them for damages caused to some of the intervenors; " and whether the possession of the property by a State court, or the pendency of a suit in a State court for the same relief, ousts the Federal court of jurisdiction, have been held to be jurisdictional, and review 11 able by the Supreme Court. 14 The right to review by the Supreme Court in such cases depends upon the existence of a question of jurisdiction, and no other question in the case will then be considered by that tri 4 Texas & Pac. Ry. Co. v. Saunders, 151 U. S. 105. 11 Even when that depends upon a question of fact. Wetmore v. Rymer, 5 Laidlaw v. Oregon & Nav. Co. 169 U. S. 115. (C. C. A.), 81 Fed. R. 876. 6 World's Columbian Exposition v. U. S. (C. C. A.), 56 Fed. R. 654; Smith v. McKay, 161 U. S. 355; U. S. v. Swan (C. C. A.), 65 Fed. R. 647. Nor the question whether there is res adjudicata. Van Wagenen v. Sewall, 160 U. S. 369; Blythe v. Hinckley, 173 U. S. 501. 7 Illinois Central R. Co. v. Adams, 180 U. S. 28, 34; supra, § 76. 8 Ibid., 180 U. S. 28, 38. 12 Sheppard v. Adams, 168 U. S. 618. 13 Powers v. Chesapeake & O. Ry. Co., 169 U. S. 92. 14 The Annie Faxon (C. C. A.), 87 Fed. R. 961. 15 Shields v. Coleman, 157 U. S. 168; Huntington v. Laidley, 176 U. S. 668. But the dismissal of a bill, upon the ground that the decree or judgment of a State court cannot be reviewed, because of its erroneous decision of certain constitutional questions does 9 Blackburn v. Portland Gold Min- not raise a question of jurisdiction. ing Co., 175 U. S. 571. Blythe v. Hinckley, 173 U. S. 501. 10 Ibid. bunal.16 When the unsuccessful party wishes to have the judgment or decree reviewed upon jurisdictional grounds and other grounds as well, he cannot appeal to both the Supreme Court and the Circuit Court of Appeals." Where two such appeals are taken, the second appeal will be dismissed.18 It has been held that the Circuit Courts of Appeals have no jurisdiction over appeals and writs of error where the only assignments of error are jurisdictional questions.19 Where, however, the assignments include other errors, it has been held that the Circuit Court of Appeals can determine the whole case, including the question of jurisdiction," and that it may certify the jurisdictional question to the Supreme Court, which will then consider it. Chief Justice Fuller said: "Giving the act a reasonable construction, taken as a whole, we conclude: (1) If the jurisdiction of the Circuit 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. (2) If the question of jurisdiction is in issue and the jurisdiction sustained, and then judgment or decree rendered in favor of the defendant on the merits, the plaintiff, who has maintained the jurisdiction, must appeal to the Circuit Court of Appeals, where, if the question of jurisdiction arises, the Circuit Court of Appeals may certify it. (3) If the question of jurisdiction is in issue and the jurisdiction sustained, and judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified and come directly to this court, or to carry the 16 Passavant v. U. S., 148 U. S. 214; McLish v. Roff, 141 U. S. 661; Schunk v. M. & S. Co., 147 U. S. 500. 17 Columbus Const. Co. v. Crane Co., 174 U. S. 600; U. S. v. Jahn, 155 U. S. 109, 113. 18 Columbus Const. Co. v. Crane Co., 174 U. S. 600. But see Robinson v. Caldwell, 168 U. S. 359, 362; Pullman P. C. Co. v. Central Tr. Co., 171 U. S. 138; s. c., 39 U. S. App. 307. It has been held that the issue of a writ of error from the Supreme Court to review a judg ment of the Circuit Court for want of jurisdiction does not prevent the Circuit Court of Appeals from issu ing a writ of error to review an order subsequent to the judgment denying a new trial claimed under a State statute. Shreve v. Cheesman (C. C. A.), 69 Fed. R. 785. Cf. No. Pac. R. Co. v. Glaspell (C. C. A.), 49 Fed. R. 482. 19 The Annie Faxon (C. C. A.), 87 Fed. R. 961; Davis & R. Mfg. Co. v. Barber (C. C. A.), 60 Fed. R. 465. 20 The Alliance (C. C. A.), 70 Fed. R. 273; U. S. v. Sutton (C. C. A.), 47 Fed. R. 129; Cabot v. McMaster (C. C. A.), 65 Fed. R. 533. 21 Rust v. United Water Works Co. (C. C. A.), 70 Fed. R. 129; American S. R. Co. v. Johnston (C. C. A.), 60 Fed. R. 503; U. S. v. Jahn, 155 U. S. 109. whole case to the Circuit Court of Appeals, and the question of jurisdiction can be certified by that court. (4) If in the case last supposed the plaintiff has ground of complaint in respect of the judgment he has recovered, he may also carry the case to the Circuit Court of Appeals on the merits, and this he may do by way of cross-appeal or writ of error if the defendant has taken the case there, or independently, if the defendant has carried the case to this court on the question of jurisdiction alone, and in this instance the Circuit Court of Appeals will suspend a decision upon the merits until the question of jurisdiction has been determined. (5) The same observations are applicable where a plaintiff objects to the jurisdiction and is, or both parties are, dissatisfied with the judgment on the merits." "" 22 It is the safer practice to procure a formal certificate from the court of first instance stating that a question of jurisdiction is in issue.23 But it seems that such a formal certificate is not indispensable, where the record shows a plain declaration by the court that the single matter sent up for decision is a question of jurisdiction." Thus, where the petition for the allowance of the writ of error or appeal asks for a review of the judgment or decree upon a single question of jurisdiction, which is clearly specified therein or in the order granting the application, the question of jurisdiction is certified with sufficient formality. A certificate stating the whole case and propounding a question which requires an analysis of the facts, and the allowance of a prayer for an appeal "upon the ground that this court was without jurisdiction to make the decree," without 22 U. S. v. Jahn, 155 U. S. 109, 114, 115. 23 Maynard v. Hecht, 151 U. S. 324; Carey v. Houston & T. C. Ry. Co., 150 U. S. 170, 179; Moran v. Hagerman, 151 U. S. 329; Colvin v. Jack sonville, 157 U. S. 368; Chappell v. U. S., 160 U. S. 499; Lutcher v. U. S., 157 U. S. 427; Davis v. Geissler, 162 U. S. 290; The Bayonne, 159 U. S. 687; Van Wagenen v. Sewell, 160 U.S. 369. 24 Shields v. Coleman, 157 U. S. 168, 177; Interior C & I. Co. v. Gibney, 160 U. S. 217 Smith v. McKay, 161 U. S. 355; In re Lehigh Min. & Mfg. 25 Ibid. The certificate may be made in the bill of exceptions. In re Lehigh Min. & Mfg. Co., 156 U. S. 322. 26 Graver v. Faurot, 162 U. S. 435; Cross v. Evans, 167 U. S. 60; Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 92; Sioux City, O'N. & W. Ry. Co. v. Manhattan Tr. Co., 173 U. S. 642; U. S. v. Union Pac. Ry. Co., 168 U. S. 505, 513. But see In re Lehigh Min. & Mfg. Co., 156 U. S. 322. specifying the defect," and a certificate of a jurisdictional question when it does not appear there or in the record that it was in issue, or affected the decision,28 are insufficient. The question of jurisdiction cannot be certified to the Supreme Court by a Circuit or District Court until after the final judgment or decree; 29 but a Circuit Court of Appeals may certify such a question at any time before its decision of the case.30 A Circuit or District Court cannot grant such a certificate after the term at which the judgment or decree was entered." It cannot at a later term grant the certificate nunc pro tunc.32 The district judge may sign the certificate, even in a case in the Circuit Court which was decided by the circuit judge." § 499. Certification to the Supreme Court by the Circuit Courts of Appeals.-The Evarts Act provides: "That the Circuit Courts of Appeals established by this act shall exercise appellate jurisdiction to review by appeal, or by writ of error, final decision in the District Court and the existing Circuit Courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law. And the judgments or decrees of the Circuit Courts of Appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different States; also, in all cases arising under the patent laws, under the revenue laws, and under the criminal laws, and in admiralty cases, excepting that in every such subject within its appellate jurisdiction the Circuit Court of Appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision. And thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the Circuit Courts of Appeals in 27 The Bayonne, 159 U. S. 687; Chappell v. U. S., 160 U. S. 499. See also Van Wagenen v. Sewall, 160 U. S. 369; Chappell v. U. S., 160 U. S. 499. Bardes v. Hawarden First Nat. Bank, 175 U. S. 526. 30 26 St. at L. 828, § 6; infra, § 499. 31 Colvin v. City of Jacksonville, 158 U. S. 456; The Bayonne, 159 U. S. 28 Arkansas v. Schlierholz, 179 U. S. 687. 598. 29 McLish v. Ruff, 141 U. S. 661; 32 The Bayonne, 159 U. S. 687. 33 Huntington v. Laidley, 176 U. S. 668, 677. such case, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy, in the same manner as if it had been brought there for review by writ of error or appeal. And excepting also that in any such case as is herein before made final in the Circuit Court of Appeals, it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court."1 The following rule regulates the practice under this act: "Where, under section 6 of the said act, a Circuit Court of Appeals shall certify to this court a question or proposition of law, concerning which it desires the instruction of this court for its proper decision, the certificate shall contain a proper statement of the facts on which such question or proposition of law arises. "If application is thereupon made to this court that the whole record and cause may be sent up to it for its consideration, the party making such application shall, as a part thereof, furnish this court with a certified copy of the whole of said record. "Where application is made to this court under section 6 of the said act to require a case to be certified to it for its review and determination, a certified copy of the entire record of the case in the Circuit Court of Appeals shall be furnished to this court by the applicant as part of the application.' 4 It has been held: that a Circuit Court of Appeals will only certify a question to the Supreme Court for instruction before it decides the same,3 upon its own motion; that it will not permit a party to move for such a certificate before the argument; 5 that the certificate cannot be made unless a quorum of the court is present; nor in a case where the decision of the Cir § 499. 126 St. at L., ch. 517, § 6, p. 828. 2S. C. Rule 37; 139 U. S. 706. 4 Ibid.; Louisville, N. A. & C. Ry. Co. v. Pope (C. C. A.), 74 Fed. R. 1. 5 Louisville, N. A. & C. Ry. Co. v. 3 Andrews v. Nat. Foundry & P. Pope (C. C. A.), 74 Fed. R. 1. Works (C. C. A.), 77 Fed. R. 774. 6 Cincinnati, H. & D. R. Co. v. McKean, 149 U. S. 257. |