Mary Ann Van Ness, Plaintiff in error, v. Cornelius P. Van Ness, Administrator of John P. Van Ness, 6 How. 62

Mr. Chief Justice TANEY delivered the opinion of the court. After stating the case, as above recited, the opinion proceeded as follows: ■ The appellate power of this court in relation to the Circuit Court for the District of Columbia is regulated by the act of Congress of February 27, 1801. And% it authorizes the writ of error to the Circuit Court'in those cases only in which there has been a final judgment, 'order, or decree in' that court.

Whatever errors, therefore, may have been(committed, and however apparent they may be in the record, yet we have not the power to correct them unless, the Circuit Court has passed a final judgment, order, or decree in the case before it.

The argument on the part of the plaintiff is, that inasmuch as the verdict was found in obedience to the positive _ instructions of the court, and as the certificate of the finding of the jury was conclusive upon the Orphans’ Court, the order of the Circuit Court to certify the verdict to the Orphans’ Court ought to be regarded as a final judgment or order within the meaning of the act of Congress. It is true the Orphans’ Court has no power to grant a new trial, and is bound to consider. the fact to be as found by the jury; and consequently the judgment of that court must be against the plaintiff.

But the matter in contest in the Orphans’ Court is the right- to the letters of administration. And it is ■ the province of that court to apply the law upon that subject to the fact, as established by the verdict of the jury, and to make their decree accordingly; refusing to revoke the letters granted to the defendant, and dismissing the petition of the plaintiff. The suit between the parties must remain still pending until that decree is pronounced. The certificate from the Circuit Court is nothing more than evidence of the finding of the jury upon the trial, of the issue.

It merely certifies a fact, that is to say, that the jury had só found. And the order of the Ciicuit Court, directing a fact to be certified to another court to enable it to proceed to judgment, can hardly be regarded as a judgment, order, or decree,- in the legal sense of ■these terms as used in the act of Congress. Certainly it is not a final judgment or order. For it does not put an end to the suit in the Orphans’ Court, as that court alone can dismiss the petition of the plaintiff which is there pending ,• and no other court has the power to pass a judgment upon it. .

A verdict in any court of common law, if not set aside, is in all cases conclusive as to the -fact found by the jury, and the judgment of the. court must follow it; as the Orphans’ Court must follow the verdict in this case. Yet a writ of error will not lie upon the verdict. And if this court should take jurisdiction, and should determine that the Circuit Court had erred, in its directions to the jury, what judgment could be given here ? Could we give a judgment reversing an order which does nothing more than direct a fact to be certified to another court ?

If we could do this, it would not reach the judgment in the Orphans’ Court, nor exercise any control over it. And a writ of error can hardly be maintained where the judgment of the appellate court would be ineffectual and nugatory. Neither could it make any difference as to the jurisdiction of this court, if there had been a feigned issue with formal pleadings, and the Circuit Court had entered a judgment upon the verdict. For the judgment would have had no effect upon the rights of either party to the administration in dispute, nor could it exercise any influence upon the decision of the Or- ■ phans’ Court.

And • if this court could have regarded the feigned issue as an action regularly brought in the Circuit Court, and upon that ground, have-taken jurisdiction, the affirmance or reversal of the judgment would have had as little effect upon the proceedings in the Orphans’ Court as the original judgment in the Circuit Court. It would, indeed decide the right to the fictitious wager stated in the pleadings.

But if the judgment of the Circuit Court was reversed, and a venire de novo awarded, it would not alter the decree in the Orphans’ Court. • That court is required by law to act upon the finding of the jury, and not upon the judgment of the Circuit Court. And the reversal of that judgment and a new finding would not authorize the Orphans* Court to recall the judgment it had given, and was bound to give upon the original verdict certified by the Circuit Court. The act of Assembly of Maryland appears to have received in practice in that State the same construction that we have given to it.

There is, indeed, no judicial'opinion on the subject ; but there is no ground for supposing that a writ of error was ever sued out under that law. In 1832,

an act was passed authorizing a writ of error in such cases, and staying proceedings in the inferior courts until a decision was had in the appellate court; and this law embraces eases which had been tried before -its passage, as well as those which should afterwards take place. But from 1798 dofirn to the passage of this act of Assembly, we can find no trace of a writ of error sued out in a case,like this. The absence of any such proceeding for so many years is the strongest evidence of the construction put upon the law, and of- the opinion entertained by the bar of the State, that the writ would not lie.

For many, issues from the Orphans’ Courts must have been tried during that period of time which would have given rise to the writ of error if it had been supposed to be warranted by the law. The act of 1832, also, embracing as it does prior as well as future cases, would have been altogether unnecessary, if a different construction had been given-to the act of 1798. Upon the whole, therefore, this court is of opinion that there has been no final judgment, order, or decree in the Circuit Court, and the writ of error must be dismissed for‘want of jurisdiction.

Order. ■This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it, is now here ordered and adjudged by this court, that this cause be and the same is hereby dismissed for want of jurisdiction.