while to examine each of the classes separately and in some little detail.

467. When the Jurisdiction of the District Court is in Issue. The first class of cases which may be appealed directly from a District Court to the Supreme Court are those in which the jurisdiction of the former is in issue. There may be various reasons for questioning the jurisdiction of a District Court to entertain a proceeding instituted before it. The defendant may set up that no Court, whether of the State or the Nation, has any authority to pass upon such a controversy as the plaintiff raises, or he may say that the plaintiff has taken into a court of law a case cognizable only in equity or vice versa, or, while admitting that the dispute is one upon which it is fitting a Court should pass and that the plaintiff has as between the legal and equitable sides of the Court chosen rightly, he may contend that the case is not one over which the particular District Court of the United States has jurisdiction under the Constitution and the statutes.

468. The Issue Must Be as to the Jurisdiction of a District Court as a Court of the United States.—It is only when the jurisdiction of the District Court as a Court of the United States is challenged that an appeal can be taken directly to the Supreme Court. If the objection would be equally applicable to the jurisdiction of a State Court or of any Court of law or of any Court of Equity, as the case may be, then no issue is raised which can be carried directly to the Supreme Court.

In the first and leading case on the subject, a bill in equity was filed, by a citizen of Rhode Island against a citizen of Massachusetts, alleging failure to pay royalties under a patent license and praying for an injunction and an accounting. More than the necessary jurisdictional amount was in controversy. The defendant objected to the jurisdiction on the ground that there was a plain, adequate and complete remedy at law. The lower Court so held. The plaintiff took

an appeal to the Supreme Court. It was there dismissed. The Court quoted with approval what had been said in an earlier case by CHIEF JUSTICE FULLER while presiding over the Circuit Court of Appeals for the Seventh Circuit, to the effect that

"We do not understand that the power of the Circuit Court to hear and determine the cause was denied, but that the appellants contended that the" appellees "had not, by their bill, made a case properly cognizable in a court of equity. The objection was the want of equity, and not the want of power. The jurisdiction of the Circuit Court was therefore not in issue within the intent and meaning of the act.”1

"When the requisite citizenship of the parties appears, and the subject-matter is such that the Circuit Court is competent to deal with it, the jurisdiction of that court attaches, and whether the court should sustain the complainant's prayer for equitable relief, or should dismiss the bill with leave to bring an action at law, either would be a valid exercise of jurisdiction. If any error were committed in the exercise of such jurisdiction, it could only be remedied by an appeal to the Circuit Court of Appeals."

In another case, the lower Court dismissed the bill because in its view the controverted questions had become res adju dicata in consequence of certain prior decisions of a State Court. The Supreme Court said that the jurisdiction of the lower Court as a Court of the United States was not in issue and therefore that an appeal directly to it did not lie.3 In Louisville Trust Co. vs. Knott, the subject was rather fully reviewed. It was there held that the question as to whether a State or a Federal Court had first acquired jurisdiction of certain property did not raise any question of the jurisdiction of the Federal Court as such, but merely a question as to which of two Courts of concurrent jurisdiction

4

'World's Columbian Exposition Case, 56 Fed. 656. 'Smith vs. McKay, 161 U. S. 355.

'Blythe vs. Hinckley, 173 U. S. 501.

191 U. S. 225.

had first acquired it in the particular case. therefore dismissed.

The appeal was

The same conclusion was reached when the question at issue was, whether, the necessary diversity of citizenship existing, a suit could be maintained in a Court of the United States under the Employer's Liability Act of Massachusetts. The defendant contended that the Court had no jurisdiction to enforce the penal law of another sovereignty. The Supreme Court said that was a question of general law and not one peculiar to the Court below as a Federal Court.5

On the other hand, it is clear that where the jurisdiction of the District Court is challenged upon the ground that there is not the necessary diversity of citizenship to give it jurisdiction as a Federal Court a direct appeal will lie. A guardian of an infant brought suit in the Federal Court. The facts were such that if the citizenship of the guardian determined whether the diversity existed or not, the Court had jurisdiction; while, if the citizenship of the ward was the controlling circumstance, it had not. It was held that an appeal to the Supreme Court was properly taken.

Quite obviously such an appeal is authorized where the jurisdiction of the Court below turns on the residence of the defendant or on the existence of a Federal question."

469. Whether Defendant is Liable to Suit in the Particular District Raises a Question of Jurisdiction Which Can Be Carried Directly to the Supreme Court. A controversy as to whether the defendant is or is not liable. to suit in the particular district in which the action has been brought, when arising in a case in which there is a sufficient amount in controversy, and either a Federal question is involved or diversity of citizenship exists, raises a question of jurisdiction directly appealable to the Supreme Court.1

In one case the plaintiff and the defendant were citizens of different States. Suit had been brought in a State Court Fore River Shipbuilding Co. vs. Hagg, 219 U. S. 175. "Mexican Central Ry. Co. vs. Eckman, 187 U. S. 429.

T Davidson Bros. Marble Co. vs. U. S., 213 U. S. 10; Moyer vs. Peabody, 212 U. S. 78.

'Ladew vs. Tennessee Copper Co., 218 U. S. 357.

in a district of which neither was a resident. The defendant removed the case to the Federal Court. The question of jurisdiction turned on whether or not the plaintiff had waived its right to object that the defendant was not suable in that particular Court. A direct appeal was properly taken to the Supreme Court.2

470. Whether Defendant Has Been Properly Served With Process Raises a Question of Jurisdiction Appealable to the Supreme Court.-Whether the Federal Court acquired jurisdiction over a defendant by a proper service of process may be reviewed by direct appeal to the Supreme Court.1

471. Direct Appeal to the Supreme Court as to Jurisdiction Carries Up That Question Only.-The statute provides that in any case in which the jurisdiction of the District Court is in issue, that question alone shall be certified to the Supreme Court. A defendant may believe that the lower Court was without jurisdiction, and may also be persuaded that it was wrong on other questions. If he carries the case directly to the Supreme Court he will be able to bring up the jurisdictional issue only, and if it should decide against him he would be unable to raise his other objections. On the other hand he may not wish to waive his protest against the assumption of jurisdiction. He therefore does not want to drop that contention and go to the Circuit Court of Appeals on the others alone. What he should do under such circumstances was elaborately discussed by the Supreme Court in United States vs. Jahn. The following rules were there laid down:

1. If the jurisdiction of the Circuit (now District) Court is in issue and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question.

* Western Loan & Svgs. Co. vs. Butte & Boston Consolidated Mining Co., 210 U. S. 368.

'Remington vs. Central Pacific R. R. Co., 198 U. S. 95. 1155 U. S. 109.

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 is 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 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.

472. Same Party Cannot Take Two Appeals-One on the Jurisdiction, the Other on the Merits. From these rules it appears that there cannot be two appeals by the same party, one to the Supreme Court on the question of jurisdiction and one to the Circuit Court of Appeals on the merits.1

Where the defeated party first appeals to the Circuit Court of Appeals on the merits and then to the Supreme Court on