Carey v. Houston T C Railway Company/Opinion of the Court
Oral argument is not allowed on motions to dismiss appeals or writs of error, and we perceive no reason for making an exception to the general rule in the case before us.

On motion to dismiss or affirm, it is only necessary to print so much of the record as will enable the court to act understandingly without referring to the transcript. Walston v. Nevin, 128 U.S. 578, 9 Sup. Ct. Rep. 192. Appellees have printed the original and amended bills; the answers and replications; the opinion of the circuit judge in disposing of the case; the final decree; the two appeals, and proceedings thereon; and the assigments of errors in both courts. This was quite sufficient for the purposes of the motion.

The judiciary act of March 3, 1891, in distributing the appellate jurisdiction of the national judicial system between the supreme court and the circuit courts of appeals therein established, designated the classes of cases in respect of which each of these courts was to have final jurisdiction, (the judgments of the latter being subject to the supervisory power of this court through the writ of certiorarl, as provided,) and the act has uniformly been so construed and applied as to promote its general and manifest purpose of lessening the burden of litigation in this court. The fifth section of the act specifies six classes of cases in which appeals or writs of error may be taken directly to this court, of which we are only concenred with the first and fourth, which include those cases '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,' and 'any case that involves the construction or application of the constitution of the United States.'

In order to bring this appeal within the first of these classes, the jurisdiction of the circuit court must have been in issue in this case, and, as appeals or writs of error lie here only from final judgments or decrees, must have been decided against appellants, and the question of jurisdiction must have been certified. We do not now say that the absence of a formal certificate would be fatal, but it is required by the statute, and its absence might have controlling weight, where the alleged issue is not distinctly defined. This record contains no such certificate, nor was it applied for, nor does it appear that the jurisdiction of the circuit court was in issue. Appellants, by filing their bill, invoked the jurisdiction of the court below over the entire case. The defendants did not contest that jurisdiction, and the court adjudicated accordingly. This is conceded, but it is contended that the question of jurisdiction was in issue, because the bill attacked the jurisdiction of the circuit court over the foreclosure suit, or its jurisdiction to make the decree of foreclosure and sald of May 4, 1888, passed in that suit. But the fifth section of the act of March 3, 1891, does not authorize a direct appeal to this court in a suit upon a question involving the jurisdiction of the circuit court over another suit previously determined in the same court. It is the jurisdiction of the court below over the particular case in which the appeal from the decree therein is prosecuted, that, being in issue, and decided against the party raising it, and duly certified, justifies such appeal directly to this court. This suit to impeach the decree of May 4, 1888, and to prevent the consummation of the alleged plan of reorganization, was a separate and distinct case, so far as this inquiry is concerned, from the suit to foreclose the mortgages on the railroad property; and no question of jurisdiction over the foreclosure suit, or the rendition of the decree passed therein, can be availed of to sustain the present appeal from the decree in this proceeding.

The collusion and fraud charged in the institution and conduct of the prior litigation, and in the procurement of the decree against the railway company, and in the other transactions in respect of which relief was sought against the defendants, seem to form the gravamen of the case; but whether the bill be treated as a bill of review, an original bill of the same nature, or an original bill on the ground of fraud, it was a distinct proceeding, in which the moving parties were shifted, and the fact that it put in issue the jurisdiction in the proceedings it assailed would not change the appeal from this into an appeal from the prior decree.

In order to hold this appeal maintainable, as within the second of the above-named classes, (the fouth class in the enumeration of the statute,) the construction or application of the constitution of the United States must be involved, as controlling, although, on appeal or error, all other questions would be open to determination, if inquiry were not rendered unnecessary by the ruling on that arising under the constitution. Horner v. U.S., 143 U.S. 570, 12 Sup. Ct. Rep. 522.

The bill before us refers to no provision of the constitution upon which complainants relied to invoke the action of the court in vindication of their supposed rights, or which was presented to be construed or applied by the court. No question upon such construction or application was raised between the parties upon the record, or determined by the decree of the circuit court.

It is argued that the record shows that complainants had been deprived of their property without due process of law, by means of the decree attacked; but because the bill alleged regularities, errors, and jurisdictional defects in the foreclosure proceedings, and fraud in respect thereof, and in the subsequent transactions, which might have enabled the railroad company, upon a direct appeal, to have avoided the decree of sale, or which, if sustained on this bill, might have justified the circuit court in setting aside that decree, it does not follow that the construction or application of the constitution of the United States was involved in the case, in the sense of the statute. In passing upon the validity of that decree, the circuit court decided no question of the construction or the application of the constitution, and, as we have said, no such question was raised for its consideration. Our conclusion is that the motion to dismiss the appeal must be sustained.

Appeal dismissed. 

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