49 F. 481 | 1st Cir. | 1892
This is a petition for a writ of man,da,•mus to be directed to the lion. Thomas L. Nelson, presiding in the circuit Court for the district of New Hampshire, requiring him to allow an appeal to this court from an order remanding to the supremo court of the state of New Hampshire the hill in equity between these petitioners on the one side and the Mount Washington Railway Company and others on the other side. The appeal was disallowed, on the ground that by the judiciary act of August 13, 1888, no appeal lies from the decision of a circuit court of the United States remanding a cause removed thereto from a state court. That act provides that, “whenever any cause shall bo removed from any state court into-any circuit court of the United States, and the circuit court shall * * * order the same to be remanded, * * no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.” 25 St. at Large, p. 435. The petitioners contend that this provision is repealed by tho act establishing this court, (26 St. at Large, p. 826.) That act, after defining the cases in which appeals are to be allowed to the supreme court, provides in section 6 that “the circuit courts of appeals * * * shall exercise appellate jurisdiction to review * * * final decision in the * * * existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law;” and in the fourteenth section, that “all acts and parts of acts relating to appeals or writs of error inconsistent with the provisions for review by appeals or writs of error in the preceding sections five and six of this act are hereby repealed.”
The petitioners argue that the decision of a circuit court remanding a cause to a state court was, at the time of the passing of the last-named act, a final decision, because it was a decision from which no appeal