Carey v. Houston & Texas Central Railway Co.

after stating the case, delivered the 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 motioii to dismiss or affirm it is only necessary to print so much of the record as. will .enable the.court to act understandingly without reference to the transcript. Walston v. Nevin, 128 U. S. 578: 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 assignments 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 Court 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 certiorari 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 concerned writh the first and fourth, which include those cases “in which- the jurisdiction of the court is in issue; in such cases the-question oLjurisdiction 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 h^ve *180 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 deféndants did not contest that jurisdiction, and the court adjudicated accordingly. This is conceded, but it is contended that the question of jurisdiction wras 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 sale 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 suph 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 id the procurement of the decree against the railway company, and in the other transac-’ tions 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 pf 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 proceed *181 ings 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 fourth class in tjie 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. United States, 113 U. S. 570.

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 irregularities, 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 pot 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.