COLE v. GARLAND et al.; SAME v. McCALL et al., 107 F. 759

JENKINS, Circuit Judge, after the foregoing statement of the case, delivered the opinion of the court. Before the act of March 3, 1875 (18 Stat. 472, c. 137, § 5), an order remanding a cause was not reviewable, because not a final judgment or decree in the sense which authorizes a writ of error or appeal. Insurance Co. v. Comstock, 16 Wall. 258, 270, 21 L. Ed. 493; Railroad Co. v. Wiswall, 23 Wall. 507, 23 L. Ed. 103. That act gave for the first time a writ of error or appeal. The last clause of

section 2 of the act of 1887 (24 Stat. 553, c. 373, § 2), as corrected by the act of 1888 (25 Stat. 435, c. 866), provides: “Whenever any cause shall be removed from any state court into any circuit court of, the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall he allowed.” And

section 6 of that a.ct repeals the paragraph of

section 5 of the act of 1875 allowing an appeal or writ of error from an order of remand to the state court. Since that act there is no power to review by appeal or writ of error an order of the circuit court remanding a cause to a state court. Morey v. Lockhart, 123 U. S. 56, 8 Sup. Ct. 65, 31 L. Ed. 68; Railroad Co. v. Thouron, 134 U. S. 45, 10 Sup. Ct. 517, 33 L. Ed. 871; Railroad Co. v. Roberts, 141 U. S. 690, 12 Sup. Ct. 123, 35 L. Ed. 902; Railroad Co. v. Brown, 156 U. S. 386, 15 Sup. Ct. 656, 39 L. Ed. 461. The fifth

section of the act of 1887 provides that nothing therein contained “shall he held, deemed, or construed to repeal or affect any jurisdiction or right mentioned” in

section 641 of the Revised Statutes of the United States. It is claimed by the plaintiff in error that his petition for removal from the state court is founded upon this

section of the Revised Statutes, and the protection of the fourteenth amendment to the constitution is invoked because of supposed discrimination, and of the seventh amendment because of supposed denial of a trial by jury by

section 2751a of the Revised Statutes of Wisconsin, and that, therefore, he is within the proviso of the fifth

section above mentioned. If his claim were otherwise clear, it is difficult to appreciate its force, since he was plaintiff in the suit, and the right of removal under

section G43. is limited to a defendant. The contention is, however, unsound. By

section 641 no right to review a remanding order is conferred. The act of 1875 gave this right of review generally in all cases of removal. This was subsequent to the enactment of

section 641. The act of -1887, taking away the right to an appeal or writ of error from a remanding order, does not repeal or affect any jurisdiction or right mentioned in

section 641, for no such right to a review was there given. The same jurisdiction and right granted by

section 641 exist now as before the act of 1887 taking away the right of review, and as before the act of 1875 granting a review. The proviso of the statute was doubtless out of abundant caution lest the clause repealing all acts inconsistent or repugnant might be held to do away with the civil rights statute.

If, as he would seem to suppose, the plaintiff in error has shown a right to have his cause determined in a federal court, and the court below has improperly remanded it, his appropriate remedy is by writ of error to the supreme court of the state, if that court shall determine the question of federal jurisdiction adversely; the power to afford a remedy by mandamus, as well as the right to a writ of error or to an appeal, being taken away by the acts of 1887 and 1888. Ex parte Pennsylvania Co., 137. U. S. 451, 11 Sup. Ct. 141, 34 L. Ed. 738. The writs of error are dismissed.