Cincinnati Street Railway Company v. Snell (179 U.S. 395)/Opinion of the Court

by Henry Billings Brown

United States Supreme Court

179 U.S. 395

Cincinnati Street Railway Company  v.  Snell

 Argued: November 15, 1900. --- Decided: December 17, 1900

This writ of error must be dismissed for lack of finality in the order appealed from. We have held in too many cases even to justify citation, that a judgment reversing a case and remanding it for a new trial, or for further proceedings of a judicial character, is totally wanting in the requisite finality required to support a writ of error from this court. It is true that the order appealed from finally adjudges that a change of venue should have been allowed; but the same comment may be made upon dozens of interlocutory orders made in the progress of a cause. Indeed, scarcely an order is imaginable which does not finally dispose of some particular point arising in the case; but that does not justify a review of such order, until the action itself has been finally disposed of. If every order were final, which finally passes upon some motion made by one or the other of the parties to a cause, it might in some cases require a dozen writs of error to dispose finally of the case. Moreover, the action of the railway company in prosecuting this writ of error is somewhat inconsistent with its position in the circuit court, where in its answer it prayed that 'since the order overruling the motion for a change of venue was interlocutory and not final, and since no other proceedings in error have been commenced herein, the present petition in error may be dismissed.' It is true that after the change of venue was denied, the case was tried upon the merits, and a verdict and judgment rendered for the defendant, of the benefit of which it was subsequently deprived; but it loses no right by acquiescing for the time being in the action of the state court, since, after judgment ultimately rendered, it may have a writ of error reaching back to the alleged error of the state court, if it involve a Federal question. The case is not unlike that of the refusal of a state court to permit the removal of a cause to the circuit court of the United States, or the action of the latter in remanding or refusing to remand. Such removal, although affirmed by the supreme court of the state, does not authorize a writ of error from this court until after final judgment, when, if the removal be found to have been erroneous, the subsequent proceedings in the state court go for naught. Chicago & A. R. Co. v. Wiswall, 23 Wall. 507, 23 L. ed. 103; Moore v. Robbins, 18 Wall. 588, 21 L. ed. 758; Illinois C. R. Co. v. Brown, 156 U.S. 386, 39 L. ed. 461, 15 Sup. Ct. Rep. 656. Whether in this case defendant's judgment will be reinstated, as it was originally entered, is a question which does not properly arise at this stage of the proceedings. It is sufficient to say that the order appealed from lacks every element of finality, and the writ of error is therefore dismissed.

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