Opinion
No. 356.
Argued January 7, 8, 1908. Decided February 24, 1908.
Where the Circuit Court of Appeals has already affirmed the judgment of the District or Circuit Court, a writ of error from this court to the District or Circuit Court to review the judgment on the jurisdictional ground cannot be maintained unless the proceedings in the Circuit Court of Appeals were absolutely void. Ordinarily a formal certificate is essential and it must be made at the same term at which the judgment is rendered; but where the record shows that the only matter tried and decided, and sought to be reviewed, was one of the jurisdiction of the court, the question of jurisdiction is sufficiently certified. District Courts of the United States are the proper courts to adjudicate forfeitures, and where the plea to the jurisdiction is simply whether the particular court has jurisdiction, by reason of the locality in which the goods were seized, the question involved is not the jurisdiction of the United States court as such, and the question cannot be certified to this court under § 5 of the Judiciary Act of 1891; but the case is appealable to the Circuit Court of Appeals. When the question of the jurisdiction of the District or Circuit Court as a court of the United States is in issue, and is certified to this court under § 5 of the Judiciary Act of 1891, no other question can be considered and the jurisdiction of this court is exclusive; as to the other classes of cases enumerated in § 5 the act of 1891 does not contemplate separate appeals or writs of error on the merits in the same case and at the same time to two appellate courts.
Mr. Assistant Attorney General Sanford, with whom The Solicitor General was on the brief, for plaintiff in error:
Upon the record in this case it is not essential to a review of the jurisdictional question by this court that the court below should have certified the question of jurisdiction at the term at which the judgment was rendered.
Where the judgment and record below, upon its face, makes it clearly apparent that the only question tried and decided below and brought to this court for review, is one of jurisdiction, no certificate is necessary, and in such case the writ of error or appeal may be prosecuted at any time within two years from the date of final judgment. Excelsior Company v. Bridge Company, 185 U.S. 285; Petri v. Lumber Company, 199 U.S. 487. Colvin v. Jacksonville, 158 U.S. 456, distinguished.
The jurisdiction of the court below was in issue within the meaning of § 5 of the Judiciary Act of March 3, 1891.
The District Court sustained the demurrer to the reply to the plea to the jurisdiction and dismissed the suit on the specific ground that no lawful seizure had been made in the northern district of Ohio. In an action in rem brought to enforce the forfeiture of merchandise seized upon the land, it is essential that it shall have been seized within the district in which the proceedings are brought, irrespective of the place in which the cause of forfeiture arose, and that unless seized within the district the court has no jurisdiction of the action. Keene v. United States, 5 Cranch, 303; The Brig Ann, 9 Cranch, 288; The Abby, 1 Mason, 360; S.C., Fed. Cas. 14; The Little Ann, 1 Paine, 40; S.C., Fed. Cas. 8,397; The Octavia, 1 Gall. 488; S.C., Fed. Cas. 10,422; The Washington, 4 Blatchf. 101; S.C., Fed. Cas. 17,221.
This rule is analogous to the well settled rule that in actions in personam, the question whether the court acquired jurisdiction of the defendant by proper service of process is one involving the jurisdiction of the court within the meaning of section 5 of the Judiciary Act of 1891. Shepard v. Adams, 168 U.S. 618; Remington v. Railroad Company, 198 U.S. 95; Board of Trade v. Hammond Elevator Co., 198 U.S. 424.
The present writ of error is not affected by the former appeal to the Circuit Court of Appeals.
Where the jurisdiction of the court below was the sole question in issue, and this issue was decided in favor of the defendant, thus disposing of the entire case, the plaintiff's appeal or writ of error must be taken under § 5 of the act of March 3, 1891, directly to this court, and if taken to the Circuit Court of Appeals the proceedings in that court are a nullity. United States v. Jahn, 155 U.S. 109; Excelsior Company v. Bridge Company, 109 F. 497; S.C., 185 U.S. 282; Petri v. Lumber Company, 127 F. 1021; S.C., 199 U.S. 487; Union and Planters' Bank v. Memphis, 189 U.S. 71; In re Aspinwall, 90 F. 675.
Mr. H.H. McKeehan for defendant in error. Mr. A.C. Dustin was on the brief.
The question is presented at the threshold of the case as to whether or not the proceedings in the Circuit Court of Appeals for the Sixth Circuit and the judgment therein rendered were absolutely void for want of jurisdiction. If they were not, this writ of error cannot be maintained, as judgments of the Circuit Courts of Appeals cannot be reviewed in this way.
Plaintiffs in error grounded their application as coming within the first of the classes of cases enumerated in § 5 of the Judiciary Act of 1891, c. 517, 26 Stat. 826, 827, in which appeals or writs of error may be taken directly to this court, and which reads: "in any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision."
The word "jurisdiction," as used in that paragraph, is, as Judge Taft said, in United States v. Swan, 65 F. 647, 649, applicable to "initial questions of the jurisdiction of a United States District or Circuit Court, whether in law or equity, over the subject matter and parties, and not to questions whether a court of equity or of law is the proper forum for the working out of rights properly within the particular Federal jurisdiction for adjudication;" and it has long been settled that it is the jurisdiction of the United States courts as such which is referred to. Louisville Trust Co. v. Knott, 191 U.S. 225; Blythe v. Hinckley, 173 U.S. 501; Mexican Central Railroad Company v. Eckman, 187 U.S. 429, 432.
Ordinarily a formal certificate is essential, and it must be made at the same term as that at which the judgment is rendered. Maynard v. Hecht, 151 U.S. 324; Colvin v. Jacksonville, 158 U.S. 456. But where the record shows that the only matter tried and decided in the Circuit Court was one of jurisdiction, and the petition upon which the writ of error was allowed asked only for a review of the judgment that the court had no jurisdiction of the action, the question of jurisdiction alone is sufficiently certified. Shields v. Coleman, 157 U.S. 168; Interior Construction Improvement Company v. Gibney, 160 U.S. 217; Smithers v. Smith, 204 U.S. 632; Petri v. Creelman Lumber Company 199 U.S. 487; Wetmore v. Rymer, 169 U.S. 115. The formal certificate in this case was not made at the term at which judgment was rendered, and came too late; but the judgment itself was rendered upon the holding that there was no lawful seizure in the Cleveland district, and there must be such a seizure in order to sustain the jurisdiction of that particular District Court. Rev. Stat. § 734. Doubtless this was no case for a certificate, and the judgment itself proceeded on the ruling as to the existence of seizure at Cleveland. District Courts are the proper courts of the United States to adjudicate forfeiture, and the question involved was not the jurisdiction of the United States courts as such, but whether this District Court had jurisdiction or the District Court for the Southern District of New York.
It was not, and could not be, contended that some District Court of the United States was not the proper court to adjudicate on the question of forfeiture, but to make a case within the jurisdiction of a particular District Court there must be a lawful seizure within that district. The District Court held here that there was no seizure in the Cleveland district and dismissed the information for that reason. That question was submitted on error to the Circuit Court of Appeals for the Sixth Circuit, and the judgment of the District Court was affirmed. The question, therefore, of the right of the collector to seize these particular goods in Cleveland has been finally determined, and no reason is perceived for holding that the Circuit Court of Appeals did not have jurisdiction to render its judgment. Whether that judgment was correct or not is therefore not open to consideration on this writ.
Where the question of the jurisdiction of the Circuit or District Court of the United States as a court of the United States is in issue, and is certified to this court under § 5 of the act of 1891, whereby no other question can be considered, our jurisdiction is exclusive, American Sugar Refining Company v. New Orleans, 181 U.S. 277, but this is not necessarily so as to the other classes of cases enumerated in that section. And as to these classes it has been repeatedly held that the act of 1891 did not contemplate several separate appeals or writs of error on the merits in the same case and at the same time to two appellate courts. McLish v. Roff, 141 U.S. 661; Robinson v. Caldwell, 165 U.S. 359; Columbus Construction Company v. Crane Company, 174 U.S. 600; Cincinnati, Hamilton Dayton Railroad Company v. Thiebaud, 177 U.S. 615; Loeb v. Columbia Township Trustees, 179 U.S. 472.
Inasmuch as in our opinion the controversy here did not involve the jurisdiction of the District Court as a Federal court, the case was appealable to the Circuit Court of Appeals, and the writ of error from this court directly cannot be maintained.
Writ of error dismissed.