THE ALLIANCE. ALLEN et al. v. STRONG, 70 F. 273

KNOWLES, District Judge (after stating the facts). The first question presented for consideration in this case is as to the jurisdiction of this court to hear and determine the matters presented by the record upon the appeal in this case. The appellees contend that the only question presented for consideration is the question of the jurisdiction of the district court in which the libel was filed. The appellants contend that other issues are presented. If the question of jurisdiction is alone presented, it is evident that the motion to dismiss this appeal must be granted.

Section 5 of the act of March 3, 1891 (26 Stat. 826, c. 517), and which act organized the several United States circuit courts of appeal, provides: “That appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court in the following cases. In any case in which the jurisdiction of the 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.” In

section 6 of said act it is provided: “That the circuit court of appeals shall exercise appellate jurisdiction to review by appeal or by writ of error * ⅜ , ⅜ all eases other than there provided for in the preceding

section of this act unless otherwise provided by law.” There does not appear to be any other mode provided by law for reviewing a decision of the district or circuit courts of the United States upon the question of jurisdiction except by appeal or writ of error to the supreme court. In the case of McLish v. Roff, 141 U. S. 661, 12 Sup.

Ct. 118, it was held that it is only after final judgment that a writ of error or appeal lies to the supreme court upon the question of jurisdiction; that, after final judgment, a party feeling aggrieved could elect to take the whole case, by an appropriate mode, either to the circuit court of appeals upon the whole case) or to the supreme court upon the question of jurisdiction.

If the whole case should he taken to the circuit court of appeals, and it should appear that the question of jurisdiction was involved, then the circuit court of appeals, if it thought proper, might certify this question to the supreme court. It will thus be seen that it was not contemplated that under any circumstances the question of the jurisdiction of the circuit or district courts should he determined by the circuit court of appeals. In the case of Manufacturing Co. v. Barber, 9 C. C.

A. 79, 60 Fed. 465, the circuit court of appeals for the Seventh circuit held that, in order for a party to be entitled to a writ of error from the circuit court to the circuit court of appeals, there should be presented for review some other question than that of jurisdiction; and in that case the writ of error was dismissed. We do not think a wilt of error or an appeal should be allowed to the circuit court of appeals upon a question it has no authority to consider and decide. In this case it is evident that the claimant sought to present by his petition only the question of jurisdiction.

The court, in its judgment, intended to decide only this question. The court probably entertained the view that, if the arrest of the Alliance was improper, then it had no jurisdiction of the cause; that before it would have such jurisdiction it must possess properly the custody of that steamship. In cases of seizure for the violation of the láws of navigation and trade of the United States, possession of the property sought to be condemned is necessary to the jurisdiction of the court:. The Fideliter v. U. S., 1 Sawy. 153, Fed. Cas. No. 4,755.

When the action is against a ship in admiralty to enforce some lien, the proceedings are properly denominated an action in rem.

In the work entitled ‘•'Proceedings in Rem,” by Waples (page 54), it is said: “Seizure is the initial step in proceedings against the thing. ⅞ ⅜ * It is absolutely essential to the existence of the action, to the jurisdiction of the; court, to the validity of the condemnation.” In Works on Courts and Their Jurisdiction (page 154) that author lays down the rule (hat in actions in rem “the court loses its jurisdiction by surrendering or otherwise losing the custody of the property.” Without indorsing to their full extent the views of the above authors, their statements show that there are some grounds for holding that when a court loses the possession of the property libeled in an action in admiralty, where the action is against the thing, such as a ship, it loses jurisdiction of the case.

AVe might be disposed to hold, if called upon, that there was no more reason for dismissing a libel against a ship because the court had temporarily lost possession of that property than (here would be for dismissing an indictment because the defendant named therein had escaped. As this is a point touching the jurisdiction of the court, we have no authority to decide it. This shows tha t the question here presented is one of jurisdiction.

There is no doubt but that when the district court lost possession of the Alliance, it lost all right to proceed against it for the time being, and make a decree concerning the same. There was no bond given in lieu of such possession. The determination as to whether or not the complainant was an officer of the state court of Oregon was a jurisdictional question. Except as it had a bearing upon that question, its consideration did not belong to the case.

The rules of comity which have been established between the federal and state courts demand, when the right to the possession of property becomes a matter of dispute between them, it shall be retained by the court which first obtained possession thereof until the termination of the action in which, the said property was seized. The determination as to whether the claimant was an officer of a court of the state of Oregon fixed the right to the possession of the Alliance, and hence the right of the court to proceed and make any decree concerning the same.

While it may be true, as contended by appellants, that the jurisdiction of a court over a cause of action presented in a libel is one thing, and the right to proceed and try the facts presented therein is another matter, owing to the fact the court has not acquired jurisdiction over the defendant named in the libel, still we think the question is presented here as to whether the court, by losing the possession of the steamship Alliance, did not lose jurisdiction of the whole case. The losing possession permanently of that ship by the district court would undoubtedly have that effect.

The court below treated this matter as a jurisdictional one. That was the view presented in the petition of the claimant, and, whatever our views about the issue presented may be, we think there is nothing but jurisdictional questions in the record. The motion to dismiss this appeal must be, therefore, sustained. It is ordered that the appeal in this cause be, and the same is, dismissed, at appellants’ costs. McKENNA, Circuit Judge, concurs.