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387) Where the transcript is docketed, the Supreme Court will determine whether it is properly taken by appeal or by writ of error. (Hurst v. Hollingsworth, 94 U. S. 111.) The agreement of parties cannot authorize the revision of a judgment in any manner other than that provided by law (Kelsey v Forsyth, 21 How. 85); and if the case is brought without service of the writ of error, it will be dismissed. (Washington Co. v. Durant, 7 Wall. 634) State legislation cannot be applied to regulate the mode of bringing up causes for review by the Supreme Court (Bayard v. Lombard, 9 How. 530; Graham v Bayne, 18 How. 60; Hudgins v. Kemp, 18 How. 530; Kelsey v. Forsythe, 21 How. 85); nor can a compact between States take away the right of a party to a writ. (Wilson v. Mason, 1 Cranch, 45.) The court cannot re-examine questions of fact upon a writ of error. (Miles v. U. S., 103 U. S. 304.) The order remanding à cause to a State court from which it was removed is reviewable. (Ayres v. Chicago, 101 U. S. 184.)

Matter in dispute. -The matter in dispute is that for which suit is brought and in relation to which jurors and witnesses are called (Lee v. Watson, 1 Wall. 337); and jurisdiction depends on the sum or value of the matter in dispute (Gordon v. Ogden, 3 Peters, 33), and the judgment is prima facie the measure of the jurisdiction. (Troy v. Evans, 97 U. S. 1.) If the record shows the matter in dispute is less than five thousand dollars, the wit will be dismissed. (Winston v. U. S., 3 How. 771.) If the matter in dispute is precisely five thousand dollars no writ of error lies. (Walker v. U. S, 4 Wall 163; West U. Tel. Co. v. Rogers, 93 U. S. 565.) If plaintiff avers that the value of the property is more than five thous and dollars, defendant may sue out a writ of error to a judgment against him. (Bennett v. Butterworth, 8 How 124.) So if the jury find the value less than five thousand dollars, and the plaintiff releases that verdict, defendant may sue out a writ of error (Bennett v. Butterworth, 8 How. 124); but if the declaration in ejectment describes the land as of the value of five hundred dollars and over, a writ of error to a judgment in favor of defendant will be dismissed (Parker v. Latey, 12 Wall. 390); and although a judgment is for more than five thousand dollars, if defendant admitted that he owed part of the amount, making the matter in dispute less than five thousand dollars, no writ of error lies. (Tintsman v. First Nat. Bank, 100 U. S. 6.) If judgment of restitution is rendered for a lot worth less than five thousand dollars, taken by a writ of possession on a judgment in ejectment, no writ of error lies. (Grant v. McKee, 1 Peters, 248.). So if defendant in replevin gets judgment for a return of part of the property, plaintiff cannot sue out a writ of error if that part is worth less than five thousand dollars (Pierce v. Wade, 100 U. S. 444). If the nature of the subject is such that the value of the matter in dispute cannot be ascertained from plaintiff's demand, nor the finding of the jury, it may be shown by affidavits on due notice to the adverse party (Williamson v. Kincaid, 4 Dall. 20; Course v. Stead, 4 Dall. 22); and time may be allowed to produce the affidavits. (Rush v. Parker, 5 Cranch, 287). In an action upon a money demand, where the general issue is pleaded, the matter in dispute is the debt claimed, and not merely the damages alleged or the prayer for judgment. (Lee v. Watson, 1 Wall. 337; Schacker v. Hartford Fire Ins. Co., 93 U. S. 241 See p. 895). In determining the jurisdiction of the United States Supreme Court on appeal, the value of the matter in dispute is to be determined by the amount due at the time of the judgment from which the appeal was taken. (Zeckendorf v. Johnson, 123 U. S. 617. And see N. Y., & E. R. Co. v. Fifth Nat. Bank, 118 U. S. 608.) Where the plaintiff in error fails to show, either from the record or by affidavits, that the matter in dispute exceeds five thousand dollars, the court will dismiss for want of jurisdiction. (Johnson v. Wilkins, 116 U. S. 392; Wells v. Wilkins, 116 U. S. 393; Cox v. Western Land etc. Co., 123 U. S. 375.) So an appeal from a decree involving separate judgments on separate claims for separate creditors will be dismissed, as to those who recovered less than five

thousand dollars. (Hassall v. Wilcox, 115 U. S. 598; Stewart v. Dunham, 115 U. S 61.)

All final judgments.-The writ of error allowed lies only from a final judgment. (Rutherford v Fisher, 4 Dail 22.) A judgmert dismissing a petition in the nature of an audita querela is a final judgment. (New Orleans R. Co. v. Morgan, 10 Wall. 256.) A party to a judgment may sue out a writ of error, although the judgment was entered by default (Macker v. Thomas, 7 Wheat. 530), or for want of a plea. (Macker v. Thomas, 7 Wheat. 530.) It lies where a party is aggrieved in the foundation proceedings, judgment, or execution. (Riggs v. Johnson, 6 Wall. 166. See Suydam v. Williamson, 20 How. 427.) It lies to a judgment entered on report of a referee. (York & C. R. Co. v Myers, 18 How. 246; Heckers v. Fowler, 2 Wall. 123.) So it lies if the circuit court strikes out a judgment after the lapse of the term (Bank v. Moss, 7 How. 31); and so rendering judgment for the wrong party (Rogers v. Burlington, 3 Wall. 654; Aurora City v. West, 7 Wall. 82); or ordering a real action revived, and entering judgment against the heir, may be examined by writ of error, even without a bill of exceptions. (Macker v. Thomas, 7 Wheat. 530.) A writ of error lies to an order directing a mandamus to issue commanding the levy of a tax. (Memphis v. Brown, 94 U. S. 715.) If a judgment for a certain sum is entered, the writ lies, though no disposition was made of a plea of nul tiel record. (Wilson v. Daniel, 3 Dall. 401.) The partial satisfaction of a judgment will not prevent plaintiff from suing out the writ, even though execution was issued previous to taking the writ. (United States v. Dashiel, 3 Wall. 688.)

Discretion-Error will not lie. -A writ of error will not lie from an order or a motion addressed to the discretion of the court, as on a motion to enter an exoneratur of bail (Morsell v. Hall, 13 How. 212); or an order granting or refusing leave to amend (Walden v. Craig, 9 Wheat. 576; U. S. v. Baford, 3 Peters, 12); or to a judgment on a writ of error in improperly granting leave to amend (Pickett v. Legerwood, 7 Peters, 144); or to a decision of the circuit court allowing a party to supply a lost pleading (Cook v. Burnley, 11 Wall 672); or an order staying a suit (Livingston v. Dorgenois, 7 Cranch, 578); or an order granting or refusing a new trial (Henderson v. Moore, 5 Cranch, 11; Barr v. Gratz, 4 Wheat. 213; Doswell v. De La Lanza, 20 How. 29; Freeborn v. Smith, 2 Wall. 160; Sparrow v. Strong, 3 Wall. 97; Insurance Co. v Barton, 13 Wall. 603); as this is not the subject for a bill of exceptions. (Blunt v. Smith, 7 Wheat. 248; Henry v. Ricketts, 1 Cranch C. C. 545; Browne v. Clarke, 4 How. 4; U. S. v. Hodge, 6 How. 279; Warner v. Norton, 20 How. 448; Pomeroy v. State Bank, Í Wall. 592; Laber v. Cooper, 7 Wall. 565.) So a writ of error will not lie from a ruling upon the question as to in what order counsel shall address the jury (Day v. Woodworth, 13 How. 363; U. S v. Dunham. 21 Law. Rep. 591); or to an order disbarring an attorney (Ex parte Robinson, 19 Wall. 513.) A writ of error does not lie to a judgment refusing to quash a forthcoming bond (Amis v. Smith, 16 Peters, 303;) nor to an order quashing an execution (Boyle v. Zacharie, 6 Peters, 618; Evans v Gee, 14 Peters, 1; Amis v. Smith, 16 Peters 303; McCargo v. Chapman, 20 How. 555; see Ex parte Flippin, 94 U. S. 318); nor to an order awarding an execution (Early v. Rogers, 16 How. 590); nor to an order on motion for stay of execution (Early v. Rogers, 16 How 590); nor to an order awarding, or refusing to award, restitution, or setting aside a writ previously granted. (Smith v. Trabue, 9 Peters, 4; Gregg v. Forsyth, 2 Wall. 56; Barton v. Forsyth, 5 Wall. 190.)

When will not lie.-If judgment is entered in favor of some defendants, but not as to others (U. S. v. Girault, 3 How. 22), or if a case is dismissed for want of jurisdiction (Insurance Co. v. Comstock, 16 Wall. 258; Railroad Co. v. Wiswall, 23 Wall. 597), or if plaintiff submits to a nonsuit (Evans v. Phillips, 4 Wheat. 73), or if the court refuses to reinstate a

case after a nonsuit (U. S. v. Evans, 5 Cranch, 280; Welch v. Manderville, 7 Cranch, 152), or if judgment be entered on a nol pros. (U. S. v. Phillips, 6 Peters, 777), or if, without notice, a party obtains executory process upon an act in nature of a judgment by confession (Levy v. Fitzpatrick, 15 Peters, 167), no writ of error lies. So a writ of error does not lie to a judg ment of the circuit court refusing a writ of habeas corpus in a controversy for possession of a child (Barry v. Mercem, 5 How. 103); or to a judgment discharging a person on habeas corpus. (Pratt v. Fitzhugh, 1 Black, 271.) If a cause is cognizable in either the circuit or the district court, a writ will not lie to reverse a judgment of the district court, although it has jurisdiction to act as a circuit court (Southwick v. The Postmaster General, 2 Peters, 442); so the Supreme Court cannot revise proceedings of the district court under complaint to enjoin proceedings under a treasury warrant of distress (U. S. v. Cox, 11 Peters, 162); so if the circuit court on a writ of error to the district court merely reverses the judgment no writ of error lies. (Brown v. Union Bank, 4 How. 4C5; Mayberry v. Thompson, 5 How. 122; Baker v. White, 92 U. S. 176.) If a third party intervenes to claim money paid into court, he cannot sue out a writ of error to an adverse decision. (Bayard v. Lombard, 9 How. 530.)

§ 592. Appeals in equity and admiralty cases. —An appeal shall be allowed to the Supreme Court from all final decrees of any circuit court, or of any district court acting as a circuit court, in cases of equity and of admiralty and maritime jurisdiction, where the matter in dispute, exclusive of costs, exceeds the sum or value of five thousand dollars, and the Supreme Court is required to receive, hear, and determine such appeals. (23 U. S. Stats. 829. Amended 18 U. S. Stats. 316.)

Appeals to Supreme Court -The appellate power of the Supreme Court is regulated by law, and the consent or agreement of the parties cannot affect it. (Gruner v. U. S., 11 How. 163; Sampson v. Welch, 24 How 207; The Alicia, 7 Wall, 572; The Lucy, 8 Wall. 307; The Nonesuch, 7 Wall 505; Merrill v. Petty, 16 Wall. 338). Only cases of equity or maritime jurisdiction can be appealed to this court (Jones v. La Vallette, 5 Wall. 479), and they can be carried to the court by appeal only. (U S. v Circuit Judges, 3 Wall. 673; The Baltimore, 8 Wall. 377; Hay s v. Fischer, 102 U. S. 121.) They cannot be taken up by writ of error (McCollum v. Eager, 2 How. 61; Walker v Dreville, 12 Wall. 440; The San Pedro, 2 Wheat. 132); nor will an appeal lie from a judgment at law. (Bevins v Ramsey, 11 How. 185.) No appeal lies from the decree of a district court (Sally v. US, 5 Cranch, 372); nor when the circuit court has special jurisdiction (The Pueblo Case, 4 Sawy 553); nor from an information for a forfeiture under the internal revenue laws. (U. S. v. Enholt, 8 Morr. Trans. 452.) Where the cause has been transferred from the district court to the circuit court on account of the private interest or general inability of the judge, an appeal will lie to the Supreme Court. (U. S. v. Circuit Judges, 3 Wall. 673). A bill of review is the appropriate mode of correcting errors apparent on the face of the record, (Clark v. Killian, 103 U. S. 766). A bill of review within two years from the time the decree was passed is in time. (Clark v. Killian, 103 U. S. 766.)

Equity appeals.-Appeal is the only mode of review in equity suits, and it does not lie before final decree is rendered. (Rayes v. Fischer, 102 U. S. 121.) A person not a party to the original proceedings cannot appeal without showing that he has been admitted as a party or that he has acted or been treated as a party. (Ex parte Cutting, 94 U. S. 14.) If permitted to intervene at the same term of the entry of a decree, he may appeal, although not a party at the time of such entry (Sage v. Central R. R Co.. 93 U. S. 412), and where he is made a party after the entry of a decree pro confesso, he may appeal from a final decree entered on a master's report made after he became a party. (Ex parte Jordan, 94 U. S. 248.) Where a decree affects both judgment creditors and general creditors, the case will

not be dismissed, although the judgment creditors alone appealed. (Day v. Washburn, 23 How. 309.) Although the defendant assigned his interest before the entry of the decree, he may appeal therefrom. (Ex parte Railroad Co., 95 U. S. 221.) A party may appeal from a decree directing the conveyance of property, although he has complied with it by executing the deed. (O'Harra v. MacConnell, 93 U. S. 150.) A purchaser at a sale under a decree to foreclose a mortgage may appeal from an order affecting his interests. (Blossom v. Railroad Co., 1 Wall. 655.) A receiver may appeal from a decree entered against him upon an adjustment of his account. (Hinckley v. G. C. & S. R. R. Co., 94 U. S. 467.) A stockholder cannot appeal from a decree against a corporation. (Ex parte Cutting, 94 U. S. 14.) A party may, to correct the error, appeal from a decree obtained by fraud. (U.S. v. Gomez, 3 Wall. 752.) Only a final decree can be appealed from. (McCollum, v. Eager, 2 How. 61; Crawford v. Points, 13 How. 11; Beebe v. Russell, 19 How. 283; Craighead v. Wilson, 18 How. 199; Crosby v. Buchanan, 23 Wall. 420; Hayes v. Fischer, 102 U. S. 121.) A decree passed by consent may be appealed from. (Pacific Railroad v. Ketchum, 101 U. S. 289.)

An appeal does not lie from an order at chambers denying the petition that all persons who had come into possession of the land pendente lite should surrender the same on demand (Heulig v. Page, 102 U. S, 219), nor from a decree merely entered in pursuance of the mandate. (United States v. Fremont, 18 How. 30.) No appeal lies from any order or decision until the final decree is passed in a case sent to the circuit court by a mandate. (United States v. Fossatt, 21 How. 445.) No appeal will lie from an order disbairing an attorney (Ex parte J. S. Robinson, 19 Wall. 513); or from an order refusing to allow a person to intervene and be made a party (Ex parte Cutting, 94 U. S. 14); or from an order refusing to set aside a decree (Brockett v. Brockett, 2 How, 238; McMicken v. Perin, 18 How. 507; Wylie v. Coxe, 14 How. 1), for an application to set aside a decree and except to the master's report is addressed to the discretion of the court (Terry v. Commercial Bank, 62 U. S. 454); or from an order refusing to grant a rehearing (Cambuston v. United States, 95 U. S. 285); or from an order permitting a receiver to make a certain contract. (La Crosse Railroad Bridge, 2 Dill, 465.) Nor can an order sustaining a demurrer to a bill of complaint be appealed from, unless it dismisses the bill (De Armas v. United States, 6 How. 103); or a decree of the circuit court entered in accordance with a mandate from the Supreme Court. (Humphrey v. Baker, 103 U. S. 736.) No appeal lies from an order of the circuit court refusing to release a party on a writ of habeas corpus (In re Phillip Henrich, 5 Blatchf. 414); nor from an order refusing to compel the marshal to execute a deed to a purchaser under an execution issued upon a judgment at law and directing the purchaser to pay all costs, for it is an order in an action at law. (Burrow v. Marshall, 15 Wall. 682.) From a decree of the circuit court affirming the decree of the district court enjoining proceedings under a treasury warrant of distress, no appeal will lie to the Supreme Court. (United States v. Nourse, 6 Peters, 470.) An order attaching a defendant for refusing to execute a conveyance as directed by court cannot be appealed from. (McMicken v. Perin, 20 How. 133.) When executory process for the sale of property under a mortgage is in the nature of a decree of foreclosure and sale, and only allowable after notice to the debtor, an appeal may be taken therefrom. (Martin v. Lalley, 17 Wall. 14.) The defendant cannot appeal from a decree dismissing a bill with costs after its reversal and before the mandate is entered. (Corning v. Troy Iron & Nail Factory, 15 How. 451.) A decree for costs alone, without awarding either profits or damages to the complainant, cannot be appealed from. (Elastic Fabric Co. v. Smith, 100 U. S. 110.) Where an answer sets up two defenses and prays to be dismissed with costs, a decree so dismissing the bill cannot be appealed from by the defendant, although it sustains only one defense. (Corning v. Troy Iron & Nail Factory, 15 How. 451.)

Final decree.-A decree directing a certain amount to be brought into court within a certain time, with a warning that in default thereof a receiver will be appointed, is a final decree. (Wabash & Erie Canal v. Reers, 1 Black. 54.) A decree dissolving an injunction which restrains a trustee from selling under a deed of trust, and instructing him to sell and bring proceeds into court to. abide further order, is a final decree. (Railroad Company v. Bradleys, 7 Wall. 575.) An appeal lies from a decree directing a transter of stock, for it is final, although it directs an account to be taken of the amount paid and to be paid therefor, and the dividends accrued thereon. (Thompson v. Dean, 7 Wall. 342.) An appeal may be taken from a decree designing to carry a decree of the Supreme Court into execution, when the mandate has been misunderstood or misconstrued to the prejudice of either party. (Perkins v. Fourniquet, 14 How. 328; Railroad Co. v. Soutter, 2 Wall. 440) A decree, although not in terms disposing of a cross-bill, is final if it declares equity to be with the complainant, and settles all legal rights involved in the pleadings, even though either party is allowed such further order as may be necessary for the execution of the same. (French v. Shoemaker, 12 Wall. 86.) No appeal will lie upon a decree upon a cross-bill made prior to a final decree to the original bill, for such decree is merely interlocutory. But where the rights of the defendant as settled by a decree on the cross-bill are not preserved by the final decree, he may appeal therefrom. (Ex parte Railroad Co., 95 U. S. 221.) A decree either maintaining or dismissing a cross-bill cannot be appealed from. (Ayers v. Carver, 17 How. 591.) A decree which decides the right to the property in contest, and directs it to be transferred from the defendant to the complainant or directs it to be sold, or directs the payment of a certain amount to the complainant by the defendant, and the complainant is entitled to have the decree immediately enforced, is final, and can be appealed from, although it provides for a reference to a master in order to settle the accounts between the parties. (Forgay v. Conrad, 6 How. 201.) A decree entered against a defendant, after striking out an answer for failure to perform an order of the court relating thereto, may be appealed from. (Fuller v. Claflin, 92 U. S. 14.) Where a decree confirms a report of a sale made under a decree to foreclose a mortgage, an appeal will lie therefrom (Orchard v. Hughes, 1 Wall. 73); and an appeal will lie from an order which confirms such sale (Butterfield v. Usher, 91 U. S. 246; Sage v. Railroad Co., 96 U. S. 912); and an appeal will also lie from an order refusing to confirm a sale on the application of the purchaser. (Blossom v. Railroad Co., 1 Wall. 655.) A mortgagee may appeal from a decree for a sale, where the finding of the circuit court of the amount due under a mortgage is not satisfactory to him. (Bronson v. Railroad Company, 2 Black, 524.) All prior decrees in the case are taken up for review by an appeal from the final decree. (Crosby v Buchanan, 23 Wall. 420.) A decree. to be final for the purposes of appeal, must leave the case in such a condition that, if there be an affirmance, the court below will have nothing to do but to execute the decree it has already entered. (Dainese v. Kendall, 119 U. S. 53; Mower v. Fletcher 114 U S. 127.)

Not final-Where a decree affirms a decree of the district court without taxation of costs and without the amount for which it is rendered, an appeal will not lie therefrom, for it is not final. (Wheeler v. Harris, 13 Wall. 51.) Whenever an inquiry as to matters of law or fact is directed preparatory to a final decision, a decree is not final. When ministerial duties only are to be discharged, though that be to ascertain an amount due, and the whole controversy has been determined, the decree is final and is appealable (Beebe v. Russell, 19 How. 283); but a decree deciding who are heirs and referring the cause to a master to state an account for a distribution of the property (Craighead v. Wilson 18 How. 190), or a decree directing certain property to be conveyed by the defendant, and referring the case to a master to take an account of the rents and profits, are not final decrees. (Beebe v. Russell, 19 How 283.) No appeal will lie

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