Opinion · Court of Appeals for the Fifth Circuit

J. W. Darling Lumber Co. v. Porter

167 C.C.A. 583

Type: Opinion
Court: Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Date: 1919-03-15
Topic: litigation

PER CURIA M. [1, 2] The record in this case shows no action by the trial court other than that on the 16th day of May, 1918, it made an order sustaining a demurrer to a declaration in an action at law, and that, at the succeeding term of the court, in November, 1918, it made another order disallowing an application of the plaintiff in the casé to *456file an amended declaration. The case is not one within any exception to the rule that the jurisdiction of this court to review by appeal or writ of error is limited to final decisions in the District Courts. Judicial Code, § 128 (Act March 3, 1911, c. 231, 36 Stat. 1133 [Comp. St. § 1120]). The record- does not show such a final decision as is requisite to support the writ of error.

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Cited by: 10 opinions

PER CURIA M.

[1, 2] The record in this case shows no action by the trial court other than that on the 16th day of May, 1918, it made an order sustaining a demurrer to a declaration in an action at law, and that, at the succeeding term of the court, in November, 1918, it made another order disallowing an application of the plaintiff in the casé to *456 file an amended declaration. The case is not one within any exception to the rule that the jurisdiction of this court to review by appeal or writ of error is limited to final decisions in the District Courts. Judicial Code, § 128 (Act March 3, 1911, c. 231, 36 Stat. 1133 [Comp. St. § 1120]). The record- does not show such a final decision as is requisite to support the writ of error. Whatever may be the rule prevailing in the courts of the state of Mississippi on the question of what constitutes a final judgment reviewable on a writ of error or appeal, under the settled rule prevailing in the federal courts, neither of the above-mentioned orders is such a final decision as is subject to be reviewed on writ of error. On such a question the ruling of the highest court of a state is not controlling on tire federal courts sitting in that state. Amis v. Smith, 16 Pet. 303, 10 L. Ed. 973; Dickinson v. Sunday Creek Co., 178 Fed. 78, 101 C. C. A. 568; Treadwell v. Corker & Smith, 245 Fed. 348, 157 C. C. A. 540.

It follows that the writ of error must be dismissed; and it is so ordered.