11 F.2d 368 | 2d Cir. | 1926
(after stating the facts as above). The remanding order is admittedly not subject to review in this court. Judicial Code, § 28 (Comp. St. § 1010). It must follow that the case has gone back to the state court, and how it or any part of it can also be or remain in the courts of the United States is, to say the least, difficult to understand.
Argument is that, while the ease was in the court below, that court'improved the opportunity to deny Mead Company’s application to dismiss Maxchant’s petition; so that the cause went back to the state court with a motion denied, which Mead Company regards as vital to its interests. Wherefore this appeal is said to bring up only the propriety of that denial.
The procedural impossibilities resulting from the action of the court below, as construed by appellant, are too obvious to need explanation. The result is that a court which held itself to be without power — i. e., jurisdiction to entertain the cause at all — is said to have cotemporaneously decided a leading, if not controlling, element of the cause.
The matter is extremely technical, yet a technicality can resolve it. The motion to remand raised a question of jurisdiction; decision was against jurisdiction; therefore proper practice was to send the matter at once, and as it was, to the place where jurisdiction existed. The second, part of the order under review was improper, if understood as appellant wants it understood.
But it can be taken, and we understand it, to mean no more than that Mead Company’s motion was necessarily denied for the same reason that the cause was remanded, viz. lack of jurisdiction. So understood the order complained of is no more than one declining any jurisdiction in the premises. It is not well drawn, but is not open to the impossibilist construction necessarily assumed by appellant. Mead Company’s motion stands for decision in the state court on its merits.
In writing the foregoing we have assumed that the order in question is final, in respect of the second part thereof. That assumption is made for argument’s sake; it is not a finding.
Order affirmed; no costs.