Statement of the Case.

C. Marley, Thomas Price, E. J. Roy, T. A. Roy, L. L. Coleman and E. M. Ayres, who are citizens of the State of Tennessee, residing in the Western Division of the Western District thereof, in an action of trespass and ejectment."

The declaration alleged ownership in fee of the plaintiffs (defendants in error here) and their possession, and alleged the entry of the defendants as follows:

"And the plaintiffs being so entitled to the said property, and so in possession thereof, the said defendants, to wit, on the said October 1st, 1898, at the said county of Lauderdale, unlawfully and without right entered into and upon the said premises, and falsely and unjustly set up title thereto, as in them respectively, and cut timber therefrom and removed the same, and exercised acts of ownership thereof under such false and unjust claim of title, and denied and refused to recognize the claim of these plaintiffs to the title, or their possession thereunder, and wholly refused to admit and repudiated the same, as they still do."

Judgment for the recovery of the land was prayed and $3000 damages.

Price pleaded not guilty. The plaintiff in error also pleaded not guilty, and "that plaintiff's action accrued more than seven years before suit brought." Against the other defendants no judgment was sought.

Upon the issues thus joined the jury found for the plaintiffs (defendants in error) as follows:

"That they find that the plaintiffs are the owners in fee and entitled to and in possession of the following lands, situated in Lauderdale County, Tennessee, to wit:

They also further found

"That the plaintiffs are the owners in fee, and entitled to all the accretions and alluvion formed by the Mississippi River in front of the said three (3) tracts of land above described, the same being and constituting all the land added by accretion and alluvion to the river front, as such front of the said three tracts of land existed on the Mississippi River when the said tracts of land respectively were granted, and extending from and including all the accretions and alluvion in front thereof,

Counsel for Plaintiff in Error.

from the line on the river of the tract first mentioned above, furthest up stream.

"As to the other land herein sued for not embraced in the above descriptions, the jury finds the plaintiffs are not entitled to the same."

Judgment was entered in accordance with the verdict. To this judgment plaintiff in error sued out a writ of error from the Circuit Court of Appeals of the Sixth Circuit, which was dismissed upon the motion of defendants in error, on the ground that there had been no summons and severance of the defend

ant Thomas Price. 105 Fed. Rep. 737. A petition for rehearing was filed but denied.

out.

This writ of error was then sued

The assignments of error are as follows:

"1. The court erred in dismissing the writ of error of petitioner upon the ground that the judgment was against two jointly, and that they did not join in the appeal.

"2. The court erred in dismissing the petition for rehearing made by this petitioner.

"In support of this assignment he submits herewith counsel's brief No. 2.

"3. The court erred in refusing to entertain jurisdiction of this cause and not reversing it upon the merits. And in support of this he refers to the assignment of error Record pp. 266, 273 and submits herewith his counsel's brief thereon No. 3.

"The ground of this application is that the record in this cause shows that petitioner claimed under muniments of title from the State of Arkansas and Polsdorfer and wife and also Price claimed under muniments of title from the State of Tennessee. In other words, petitioner claims that he has a right to the writ of error under the Constitution of the United States, article 3, section 2."

Mr. Thomas B. Turley and Mr. J. B. Heiskell for plaintiff in error. Mr. C. W. Heiskell was with them on the brief.

Opinion of the Court.

Mr. Wassell Randolph for defendants in error.

Mr. William M. Randolph and Mr. George Randolph were with him on the brief.

MR. JUSTICE MCKENNA, after making the foregoing statement, delivered the opinion of the court.

A motion is made to dismiss on the ground that the judgment of the Circuit Court of Appeals was final, and therefore it is not reviewable by writ of error from this court.

Interpreting the Judiciary Act of 1891, we said, in McLish v. Roff, 141 U. S. 661, 666, that its purpose was to provide "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 to which each of those two courts shall respectively have final jurisdiction.”

But special questions arose. It was provided in section 6 that the judgments and decrees of the Circuit Court of Appeals should be final in all cases in which jurisdiction was dependent entirely upon diversity of citizenship. What jurisdiction was meant and what would be the effect if Federal questions should appear in the proceedings after the commencement of the case? The questions were answered in Colorado Mining Co. v. Turck, 150 U. S. 138.

In that case the jurisdiction of the Circuit Court was invoked on the ground of diversity of citizenship, but the defendant claimed to have set up in defence a Federal question arising under section 2322 of the Revised Statutes of the United States, and on that ground insisted that the judgment of the Circuit Court of Appeals in the case was not final. Rejecting the contention and dismissing the writ of error, this court held that before the defence under section 2322 of the Revised Statutes had been set up jurisdiction had "already attached and could not be affected by subsequent developments." Jurisdiction, it was said, "depended entirely upon diverse citizenship when the suit was commenced, and to that point of time the inquiry must necessarily be referred." The same idea was expressed in sub

Opinion of the Court.

sequent cases though in somewhat different language. But a distinction was not precisely made between the questions embraced in section 5 and other Federal questions. That distinction was presented in Loeb v. Columbia Township Trustees, 179 U. S.

472.

The case was an action upon bonds issued by the township for the purpose of raising money to meet the cost of widening and extending a certain avenue within its limits. There was a demurrer to the petition, and it appeared from the opinion of the court that one of the points raised on the demurrer was that the act of the general assembly, under and by virtue of which the bonds were issued, contravened the Constitution of the United States, and therefore the bonds were void. The case came directly from the Circuit Court to this court. A motion was made to dismiss for want of jurisdiction. The motion was denied, notwithstanding the petition in the Circuit Court showed that the parties were citizens of different States and stated no other grounds of jurisdiction. If nothing more appeared, it was said, bearing upon jurisdiction, "it would be held that this court was without authority to review the judgment of the Circuit Court." But as we have seen, the claim had been made in the Circuit Court by the defendant that the statute of Ohio, by the authority of which the bonds were issued, was in contravention of the Constitution of the United States. It was contended that such claim made by the defendant was not sufficient to give this court jurisdiction, upon a writ of error, to review the final judgment of the Circuit Court sustaining such claim. It was answered, “such an interpretation of the fifth section is not justified by its words. Our right of review by the express words of the statute extends to any case' of the kind specified in the fifth section." And this view was affirmed in Huguley Manufacturing Company v. Galeton Cotton Mills, 184 U. S.

290.

In Robinson v. Caldwell, 165 U. S. 359, it has been decided that "it was not the purpose of the Judiciary Act of 1891 to give a party who was defeated in a Circuit Court of the United States the right to have the case finally determined upon its merits both in this court and in the Circuit Court of Appeals."

Opinion of the Court.

This was affirmed in Loeb v. Columbia Township Trustees. It was there observed that the plaintiff in that action could have carried the case to the Circuit Court of Appeals, but had he done so," he could not thereafter have invoked the jurisdiction of this court upon another writ of error to review the judgment of the Circuit Court."

Therefore when the jurisdiction of the Circuit Court is invoked solely on the ground of diversity of citizenship two classes of cases can arise, one in which the questions expressed in section 5 appear in the course of the proceedings and one in which other Federal questions appear. Cases of the first class may be brought to this court directly or may be taken to the Circuit Court of Appeals. But if taken to the latter court they cannot then be brought here. Cases of the second class must be taken Appeals and its judgment will be final. The case at bar falls under one or under the other of those classes.

to the Circuit Court of

The declaration was ejectment and trespass in the form used in the local practice. The only ground of jurisdiction was that the plaintiffs were citizens of the State of Indiana, and the defendants were citizens of the State of Tennessee. The answers

were simply traverses in statutory form of the wrongs alleged in the declaration. The plaintiffs in the case recovered, and the plaintiff in error here carried the case to the Circuit Court of Appeals. The Federal question arose in the course of the proceedings in the Circuit Court, and is claimed to have been and to be based on grants of lands from different States, the conflict arising between grants from the State of Tennessee to defendants in error and to Price, under which they respectively claimed title, and a tax deed introduced in evidence by plaintiff in error, which was made by the officials of Mississippi County, Arkansas, and under which deed he claimed title. Granting, for argument's sake, there was an opposition of grants within the meaning of the provision of the Constitution defining the judicial power of the United States, it would seem to bring the case within the doctrine of Loeb v. Columbia Township Trustees, both as to the question raised and the manner of its review, and the plaintiff in error, having sued out a writ of error from