Loflin v. Ayres

164 F. 841 | 8th Cir. | 1908

SANBORN, Circuit Judge.

Plaintiffs below, Sallie J. Ayres and' others, brought an action of ejectment against the Anderson-Tully Company, a corporation, and another, in the circuit court of Mississippi county, in the state of Arkansas, in January, 1907, and on Eeb-ruary 5, 1907, indorsed upon their complaint a statement of their election to transfer the cause to the chancery court of that county, and the-clerk of the court indorsed the transfer chosen. Thereafter, and in due time, the Anderson-Tully Company filed in the circuit court of Mississippi county the proper petition and bond, and took suitable proceedings to remove the case from that court to the Circuit Court of the United States of the Eastern District of Arkansas. The latter court, after the transcript had been filed, upon motion of the plaintiffs below, made an order that the-action be stricken from its docket, upon the sole ground that it was not pending in the circuit court of Mississippi county when the petition for removal was filed, and the writ of error before us was sued out to review this order.

But the jurisdiction of this court upon a writ of error is limited to the review of a final decision of the court below. Act March 3, 1891, c. 517, § 6, 26 Stat. 828, Supp. Rev. St. p. 903 (U. S. Comp. St. 1901, p. 549). An order, judgment, or decree which leaves the rights of the parties affected by it undetermined and open to further litigation in the same suit is not a final decision. Standley v. Roberts, 59 Fed. 836, 839, 8 C. C. A. 305, 308; Collin County Nat. Bank v. Hughes, 152 Fed. 414, 416, 81 C. C. A. 556, 558; Stevens v. Nave-McCord Merc. Co., 150 Fed. 71, 73, 80 C. C. A. 25, 27; Morrison v. Burnette, 154 Fed. 617, 622, 83 C. C. A. 391, 396; Chase v. Driver, 92 Fed. 780, 784, 34 C. C. A. 668, 672.

An order which strikes a case from the docket of a court is not a final decision. It does not dismiss the action. It simply suspends proceedings in it until further steps are taken to secure a final disposition of it. The action is still pending, and may be reinstated upon the docket by the court upon motion or petition, and may then be decided upon its merits or dismissed for want of jurisdiction. Welch v. Louis, 31 Ill. 446, 455; Tibbs v. Allen, 29 Ill. 535, 548; Hayden v. Huff, 62 Neb. 375, 87 N. W. 184, 187. As the order challenged did not evidence a final decision of this case by the court below, it is not reviewable until a final decision has been rendered, and this writ of error is dismissed because this court is without jurisdiction to consider or decide the alleged errors which it was brought to correct.