after stating the case, delivered the opinion of the court.
This сourt has no jurisdiction, upon writ of error, to review a judgment of a state court, unless it was a final judgment, by the highest court of the State in which a decision in the suit could be had, and against a right set up under the Constitution or laws of the United States. Rev. Stat, § 709.
The order of the inferior court of Wisconsin, overruling the defendant’s demurrer, with leave to answer over, was clearly not a finаl judgment, under the Judiciary Act of the United States, although it was re viewable on appeal in the Supreme Court of Wisconsin, under the statutes and practice of the State.
The judgment which was rendered by the Supreme Court of Wisconsin upon such an appeal cannot be reviewed by this court; because, although it was a judgment of the highest court of the State, and against the plaintiff in error, it was *342 not a final judgment, disposing of the whole case, but only reversed the order of the inferior court overruling the demurrer, and remanded the case to that court for further proceedings.
The subsequent judgment of the inferior court, sustaining the demurrer and dismissing the action, cannot be reviewed by this court; because, although that was a final judgment against the plaintiff in error; setting up a right under the Constitution and laws of the United States, it was not a final judgment in the highest court of the State in which a decision in the suit could be had.
The case is singularly like
McComb v. Knox County Commissioners,
In the case at bar, it wаs argued in support of the jurisdiction of this court that, if an appeal had been taken from the final judgment of the inferior court to the Supreme Court of Wisconsin, that court, according to its uniform course of decisions, would have affirmed the judgment, upon the ground that its decision upon the first appeal was conclusive; that this court, according to the decision in
Northern Pacific Railroad
v.
Ellis,
If all this were so, there would be strong ground for sustaining the present writ of errоr.
Wheeling & Belmont Bridge
v.
Wheeling Bridge,
It is true, that the Supreme Court of Wisconsin, upon a second appeal frоm an inferior, court, has always declined to reconsider any question of law decided upon the first appeal.
Downer
v.
Cross,
2 Wisconsin, 371, 381;
Noonan
v.
Orton,
27 Wisconsin, 300;
Du Pont
v.
Davis,
35 Wisconsin, 631;
Lathrop
v.
Knapp,
37 Wisconsin, 307;
Oshkosh Fire Department
v.
Tuttle,
50 Wisconsin, 552. It does not, however, as appears by the two cases last cited, when that question is the only one presented by the second appeal, dismiss that appeal for want of jurisdiction; but it entertains jurisdiction, and ■affirms the judgment. In so doing, that court has done no .moie than this court has always done, or than is necessary to
*344
enable an appellate court to perform its duties satisfactorily and efficiently, which would be impossible if a question, once considered and decided by it, were to be litigated anew in the same case upon any and every subsequent appeal.
Washington Bridge
v.
Stewart,
The case of
Northern Pacific Railroad
v.
Ellis
was very рeculiar in its circumstances, and was as follows: Ellis brought an. action against the Northern Pacific Eailroad Company, in an inferior court of the State of Wisconsin, to quiet title to land; and in his complaint set forth not only his own title, but also the title of the railroad company under a conveyance by way of donation from a county. The railroad company demurred to the complaint, the demurrer was overruled, arid the company appealed to the Supreme Court of Wisconsin,' which held the conveyance to be void for want of power ip-the county under the constitution of the state, and therefore, without any Federal question being presented or considered, affirmed the order overruling the dеmurrer, and remanded the case to the inferior court for further proceedings. 77 Wisconsin, 114. The railroad company thén filed an answer, reasserting its title under the deed from the county; аnd afterwards applied for leave to file a supplemental answer, setting up a decree which, since the decision of the Supreme Court-of the State, had been rеndered by the Circuit Court of the United States in a suit commenced, after the former order of the inferior court, by the railroad company against Ellis and others, by which judgment the title of the railroad' company in other lands held under the same conveyance was adjudged to be valid. The inferior court of the State denied leave to file the supplemental answer, and, upon a hearing, rendered final judgment kgainst the railroad company. The company again appealed to the Supreme Court of the State, which affirmed the judgment, upon the ground that'its own decision upon the demurrer as to the validity of the title óf the railroad company was
res ad
judicata, and could not, accord
*345
ing to the settled law of the State, be reviewed by- the inferior court, or even by the Supreme Court of the State, save upon' motion for rehearing. 80 Wisconsin, 459, 465. The only right under the laws of the United States, suggested or considered at any stage of the proсeedings in the courts of the State, was the claim that the decree of the Circuit Court of the United States, rendered after the decision of the Supreme Court of the State upon the first appeal, estopped Ellis to deny the validity of the conveyance from the county to the railroad company. The only decision made by the Supreme Court of the State upon that claim was that the invalidity of that conveyance had been finally adjudged, for the purposes of the suit, by its former decision, and therefore the decree of the Circuit Court Of the United States should not be permitted to be pleaded by supplemental answer, in the nature, of a plea
%>uis darrein continuance.
This court, in dismissing the writ of error to the Supreme Court of thе State, dealt with no other question ;
There is nothing in the decisions above cited, or in ány other decision of this court, which countenances the position that in Wisconsin, or in any other State, when the highest court of the State, upon a first appeal, decides a Federal question against the appellant, and remands the case to the inferior court, not . merely to carry the judgment into execution, but for further proceedings according to lаw, and upon further hearing the inferior court renders final judgment against him, he can have that judgment reviewed by this court by writ of error, without first appealing from it to the highest court of the State, оr at least, where such is the practice, presenting a petition to that court for leave to appeal.
Fisher
v.
Perkins,
In the case at bar, as in McComb v. Knox County Commis *346 sioners, above cited, the final judgment of the inferior court of thе State may have been the necessary result of the previous decision by the Supreme Court of the questions presented for its determination ; but it was none the less, on that account, a. judgment of the inferior court. As such, it was, when rendered, open to review by the Supreme Court upon a new appeal; and, for that reason, was not the final judgment of the highest court of the State in which a decision in the suit could be had.
Writ of error dismissed for want of jurisdiction.