CRAWFORD v. McCARTHY, 148 F. 198

BAKER, Circuit Judge, having stated the case as above, delivered the opinion of the court. By

section 6 of the organic act (Act March 3, 1891, 517, 26 Stat. 828 [U. S. Comp. St. 1901, p. 549]) the Circuit .Courts of Appeals are given jurisdiction to entertain “all cases other than those provided for in the preceding section.” Cases in which the right of immediate review is conferred upon the Supreme Court by

section 5 (26 Stat. 827 [U. S. Com.p. St. 1901, p. 549]) include those “in which the jurisdiction of the (trial) court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.” The latter part of the provision refers only to the way in which the record must be gotten up in order that the case in the Supreme Court may withstand a motion to dismiss for informality. Courtney v. Pradt, 196 U. S. 89, 25 Sup. Ct. 208, 49 L. Ed. 398; Excelsior Co. v. Pacific Bridge Co., 185 U. S. 282, 22 Sup. Ct. 681, 46 L. Ed. 910.

Except in cases where the question is whether the trial court ever obtained jurisdiction of the defendant by proper process (Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 25 Sun. Ct. 740, 49 L. Ed. 1111), the word “jurisdiction” in

section 5 is interpreted to refer exclúsively to the jurisdiction of the trial court as a court of the United States — a court sharply restricted both as to persons and as to subject-matters. Courtney v. Pradt, 196 U. S. 89, 25 Sup. Ct. 208, 49 L. Ed. 398; Bache v. Hunt, 193 U. S. 525, 24 Sup. Ct. 547, 48 L. Ed. 774; Eouisville Trust Co. v. Knott, 191 U. S. 225, 24 Sup. Ct. 119, 48 L. Ed. 159; Blythe v. Hinckley, 173 U. S. 501, 19 Slip. Ct. 497, 43 L. Ed. 783; Smith v. McKay, 161 U. S. 355, 16 Sup. Ct. 490, 40 L. Ed. 731.

In the case at bar the defendant by his first four grounds of demurrer asserted that the bill, by its averments and omissions, showed that the court as a federal court was without’ jurisdiction, because no federal question was involved, because the' nonfederal controversy was between citizens of the same state, and because the nonfederal controversy could not be created á handmaiden of the suit of the trust company against the traction company simply by labeling the bill “ancillary.” This challenge required consideration, and, if the court deemed it well founded, it was the court’s duty to dismiss the bill “for want of jurisdiction.” Of course, if the court believed that the challenge of its jurisdiction as a federal court was not sustained, it was the court’s duty, under the remaining grounds of demurrer, to proceed and determine whether the bill stated a case requiring or justifying its interposition.

Now, because the fifth and sixth causes of demurrer also mention “jurisdiction,” the motion to dismiss is resisted on the contention that the decree is ambiguous, that it cannot be told therefrom for what want of jurisdiction the bill was dismissed. Even so, it remains true that the jurisdiction of the trial court as a federal'court was and is in issue. But the fifth and sixth causes of demurrer, in their essential nature, do not deny, but rather invoke, the authority of the court to hear and determine. Under them the question was whether the case required equitable relief.

Those causes, therefore, were but specific instances of the general objection covered by the seventh cause, namely, that the facts set forth in the bill were not sufficient to constitute a cause of action in equity. In Smith v. McKay, 161 U. S. 355, 16 Sup. Ct. 490, 40 L. Ed. 731, as in this case, objection was raised to the bill on the ground that the complainant had a plain and adequate remedy at law.

Of this the court said: “The objection was not to the want of power in the Circuit Court to entertain the suit, but to the want of equity in complainant's bill.” This view was again upheld in Louisville Trust Co. v. Knott, 191 U. S. 225, 24 Sup. Ct. 119, 48 L. Ed. 159. As, therefore, the only objections to the court’s power to hear and decide the merits of the bill were contained in the first four grounds of demurrer, and as these denied the jurisdiction of the court as a federal court, the record unequivocally demonstrates that the bill was dismissed “for want of jurisdiction” within the meaning of

section 5. The motion accordingly is sustained, and the appeal dismissed.