Kirwan v. Murphy (170 U.S. 205)/Opinion of the Court

by Melville Fuller

United States Supreme Court

170 U.S. 205

Kirwan  v.  Murphy

By the sixth section of the act of March 3, 1891 (26 Stat. 826, c. 517), the judgments or decrees of the circuit courts of appeals are made final in that court in the classes of cases therein enumerated, of which the present is not one; and it is provided that, in all cases not made final, there shall be of right, within one year, an appeal or writ of error or review of the case by this court, where the matter in controversy exceeds $1,000 exclusive of costs.

But this applies only to final orders, judgments, or decrees. Young v. Grundy, 6 Cranch, 51; Iron Co. v. Martin, 132 U.S. 91, 10 Sup. Ct. 32; McLish v. Roff, 141 U.S. 661, 12 Sup. Ct. 118; American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U.S. 372, 378, 13 Sup. Ct. 758.

The order sought to be reviewed was simply an interlocutory order of the circuit court for the issue of a temporary injunction, which order was affirmed by the circuit court of appeals without direction. If we should take jurisdiction, it is this order we should revise in also reviewing that of the circuit court of appeals, and our mandate would go directly to the circuit court. Railway Co. v. Behlmer, 169 U.S. 644, 18 Sup. Ct. 502.

In Smith v. Iron Works, 165 U.S. 518, 17 Sup. Ct. 407, it was held that the circuit courts of appeals, on an appeal from an interlocutory order or decree of the circuit courts granting an injunction and ordering an accounting in a patent suit, might consider and decide the case on its merits, and thereupon render or direct a final decree dismissing the bill; and this course might be pursued in other cases. Mills v. Green, 159 U.S. 651, 16 Sup. Ct. 132. Here, however, the court of appeals did not finally determine the case by its judgment, and whethe the temporary injunction should be made permanent or not was left to the circuit court to decide when the final decree was entered.

And we may add that, in concluding its opinion, the circuit court of appeals said: 'In view of these considerations, we are not satisfied that an error was committed in awarding a temporary injunction. It cannot be said, w think, that the injunction was improvidently issued, and the order appealed from is therefore affirmed.' 49 U.S. App. 658, 28 C. C. A. 348, and 83 Fed. 275.

Moreover, by section 6, the circuit courts of appeals are empowered to review final decisions of the district and circuit courts, except where cases are carried, under section 5, directly to this court, but, by the seventh section, as amended by the act of February 19, 1895 (28 Stat. 666, c. 96), jurisdiction is given to the courts of appeals from appeals from interlocutory orders in injunction proceedings; and it was under that section that the appeal was taken to the court of appeals in this case.

But there is no provision in the act of March 3, 1891, or any other act, authorizing an appeal to this court from interlocutory orders or decrees, and whether certiorari would lie is a question that does not arise. In re Tampa Suburban R. Co., 168 U.S. 583, 18 Sup. Ct. 177.

Appeal dismissed.

Notes