*1 BANK AT v. NATIONAL DALLAS MERCANTILE LANGDEAU, RECEIVER. February Argued 27-28, to the- calendar 1962. Restored
No. 14. Reargued reargument April December 1962.— 1962.- January 21, Decided 1963.* Lang Dallas * Together 15, Republic National Bank with No. Receiver, appeal deau, from the same Court. also *2 reargued Hubert D. Johnson and Marvin S. Sloman appellants. cause for With them on the briefs was Neth L. Leachman. Quentin reargued E. Cureton and
William Keith appellee. cause for Cecil With them on the briefs was C. Rotsch. opinion Justice White delivered the of the Court.
Mr. Appellee, the for a Texas company- receiver insurance liquidation Ninety-eighth District Court County, Travis an Texas, action that court against the two national appellants banks who are here and 143 other parties, alleging a conspiracy to defraud the company insurance and claiming damages jointly severally in the amount of 15 million dollars. Each appellant filed a plea of privilege, provided by the Texas Rules of Civil Procedure, asserting that was it located in Dallas County, Texas, and was therefore immune from suit in Travis County provisions under the Stat. § Rev. (1878), 94,§ U. C. which provides:
“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.” 1 See Appendix, pertinent No. 4. The legislation national bank appears Appendix post, p. 567. opinion, hand, upon other relied Insurance
Appellee, Texas provides: 4 of Code, 21.28, Art. Section “(f) competent Lawsuits. New The jurisdiction delinquency which the proceedings pending under this Article shall have venue to all proceed- hear determine action or ings after delin- instituted the commencement of quency proceedings by or the insurer receiver.” pleas they ap- the banks were overruled and
pealed, being agreed only that the issue for review was appellants whether U. S. C. entitled to have action County transferred to the state court Dallas whether the provision (f) state venue contained in 4 *3 the Insurance Code was controlling. The Court of Civil Appeals pleas reversed and sustained on privilege ground against that 12 94 an required §C. action U. a bank brought to be in the of its location. Supreme Texas Court, however, accept The refused to 94§ prohibiting as petitioners County suit Travis expressly permitted state venue statute it. 161 349, 341 2d 161. one hand, Tex. S. W. On the the court interpreted mandatory, § 94 and permissive only, as other, having as repealed by been an omnibus in an repealing clause 1882 statute ab- subsequently Appellants sorbed into 28 C. § U. S. 1348.3 here (2) § cases under U. S. C. 1257 and, because finality question, postponed ruling upon we our jurisdic- until tion the merits were considered. 368 U. S.
I. question appellate The of our jurisdiction quite is sim- ilar to the one considered in Construction Laborers v. Curry, ante, p. 542, although jurisdiction there the Appendix, No. 6. See Appendix, No. 8. inquiry here the issue and was at courts and all state to enter- proper has venue state only as to which is Nonetheless, banks. two national an action tain is made law, state under appealable claim, a substantial deter- statute, a state rather than statute, a federal may be national bank court a in which state mines proceedings further Curry, prohibits and, sued which the suit court in in the state against the defendants independent and a separate This is pending. is now matter, enmeshed and not to the merits anterior cause of plaintiff’s legal comprising issues factual and policy it serves the believe that Moreover, we action. finality S. C. U. requirement underlying appellants in which state court now 1257 to determine appellee, subject them, than to may be tried rather naught may all be complex litigation long question of venue preliminary if consideration Ac- proceedings. conclusion of the postponed until the appeals these jurisdiction we note our hear cordingly, of whether (2) question and turn now to the under County court. appellants may be sued the Travis II. problem roots of this reach back to the National year
Banking 665, replaced Act of Stat. 99.4 National banks later the Act of 13 Stat. *4 power are federal instrumentalities and the Con- gress quasi- them is banks are over extensive. “National public purpose they and for the for which institutions, history begins banking in of national the United States with (1 States, 191; the First Bank of the United chartered in 1791 Stat. Deveaux, 61), see Bank the United States v. 5 Cranch Dictionary History in existence until 1811. 1 of American continued (1940). incorporated 1816, 266, in The Second Bank was 3 Stat. States, 738, see v. Bank the United 9 Wheat. Osborn permitted expire. its Ibid. terminated in 1836 when charter was and, within character, in their are are instituted control of Con- subject to the limits, constitutional legisla- by interfered with state gress and are not lawmaking far as except so judicial action, tive Reed may permit.” Van v. power of the Government Bank, People’s Nat. 554, Unques- 557. 198 U. S. authority prescribe had the manner tionably Congress which the banks could sue or be and circumstances under sued in and it addressed itself to this matter the courts the 1863 Act.
By banking given 11 of that Act associations were general corporate among power them the to “sue powers, fully and be sued ... any 5 equity law teaching as natural This if persons.” section, Deveaux, Bank the United States is ob 61, v. Cranch served, jurisdiction upon conferred no the courts but merely power endowed the banks with to sue and be sued in the courts as corporations. Congress, however, had say more to about this subject. Section 59 of the 1863 provided Act6 against any suits association under the Act had in any could be federal court held within the district which the association was estab lished. No mention made of suits in was state courts. If the law had form, might remained there well grave have been suability doubt about of national banks the state in First as this Court noted courts, Nat. Bank v. Union Co., Trust 416, U. S. 428.7 Appendix, No. 1. 6Ibid. subject conclusion 57, on this is fortified “[O]nr the terms of § c. Act, 13 Stat. 116 infra], making discussed con [the concerning cognizable troversies national banks in state courts because many of their intimate relation to regulations, although state laws and grant Congress without the of the act of such controversies would have been S., federal in character.” 244 U. at 428. But cf. Claflin Houseman, 93 U. S. *5 its however, Congress expressly exercised year, The next banks sued in certain state permit national to be power to in courts. 57 of the 1864 well as Section courts as and also that forward former 59 added Act8 carried any or state, county, . . had ... may . be “suits city in which said court in the municipal located, having jurisdiction association is similar was, . phrase . . . “suits . . be had” cases language purpose every respect, appropriate precise Congress courts in which consented specifying national subject banks to suit we Con- believe gress intended in those alone could a courts national against bank sued its will. lightly congressional would not conclude that a
We enactment has no purpose function. We must strive give appropriate meaning provisions to each Title 12 and predecessors. its See United States v. Menasche, Ramsdell, 528, 539; 348 TJ.S. Montclair v. 147, 152. Appellee, U. S. would hold however, have us state could entertain suit national bank as long as state jurisdictional and venue requirements were otherwise satisfied. Such a ruling, would course, altogether meaningless render congres- sional permitting enactment brought suit to be bank’s home county. This we are unwilling do, par- light ticularly history of 57. That section was (National from omitted Title 62 Banks) of the Revised Statutes at 1873, but time, same in- there were cluded in Title (The Judiciary) provisions granting jurisdiction federal courts over suits banks the district of their residence.9 express These provisions relating to the jurisdiction of the federal apparently courts did not solve the prob- entire lem, §for 5198 of Title Revised Statutes, was amended Appendix, No. 2. See Appendix, No. 5. *6 substantially identical by adding provisions in to it 1875 Thus for a time Con- to 57 of the Act.10 second § 1864 in courts which gress specified precise state against brought. could national banks suits upon All of in this which have touched the cases Court in the issue here are accord with conclusion that our only in national banks be sued in those state courts county where the banks located.11 Notable among Morgan, these is Charlotte Nat. v. Bank 141, suit a U. S. which involved a national bank in county other in which than the bank was located. This per- Court stated that 57 conferred a § privilege sonal on the them exempting banks from suits in state courts outside their home However, counties. since the bank in that had case not objected at the trial to the of location but' suit raised the issue for the first time on appeal, Court held that the privilege § 57 had been waived.12 10 Appendix, No. 3. 11Bank Pahquioque Bethel v. Bank, 383, 14 Wall. was a suit of
in state courts in national bank on its default notes. national bank contended that it instrumentality since anwas of the Government, subject Federal it was not to suit state courts. This Court, noting that the suit was in state where the bank was located, power sustained squarely upon the state court provisions Casey Subsequently, Adams, 66, v. § U. S. reaffirmed the 57, mandate of 5198, applied then Rev. Stat. as § § ordinary transitory actions Congress but held that did not intend apply local, it to Many years rem later, actions. in the course deciding Cope Anderson, v. Court, 331 U. S. in com out; pelling language, pointed jurisdictional purposes, “For a national bank is a 'citizen’ of the state in which it is located, established or (16), S. C. 41 U. and in that district alone can it be sued. S., U. S. C. 94.” U. at 467. exemption “This banking associations from suits in courts, state established city elsewhere than in the in which located, was, such associations were we doubt, prescribed do not the convenience institutions, prevent of those and to interruption in history in the its nothing statute, find
Thus, we appellee’s construction support in this Court cases contrary, all these convince On the sources this statute. given reading.13 a mandatory must be us the statute being might their books sent to distant their business that result from process from state courts. Bank Bethel counties obedience to Bank, 394; Pahquioque Crocker v. Marine National 14 Wall. conjecture indulging But, Bank, 101 without Mass. [240]. question, object exemption sufficient that it was to the granted and, if claimed the defendant Congress, it had been County, appearing Superior of Cleveland must Court *7 recognized. not, however, did choose to been The defendant upon immunity It the claim from in that court. made defence suit having prosecuted merits, and, unsuccessful, a writ of error been tribunal, for Supreme State, the the and in the latter the Court of granted by Congress. time, immunity it This was first the claimed object the Considering too as well as the words of statute late. the authorizing banking asssoeiation to be suit a national proper county located, we of in state where it is are the opinion in the exemption that from suits other courts of same its waive, which, personal privilege it in this State was a could making waive, appearing and defence case, the defendant did granted by Congress. claiming immunity No reason without the State, another, suggested why rather can one court than cognizance being dignity, take of a suit should both same except And bank, the convenience of the bank. a national exemption supports view that of a this consideration county except bank from suit in state court one of the city personal privilege, in it which it could is located is necessary.” S.,.at not, claim or it deemed 132 U. as 13 holding unanimous in federal courts have been The lower fully mandatory. Bank, Chase Nat. section effective and v. Buffum 944; (C. 1951), denied, 2d cert. 342 S. 192 F. 58 A. 7th Cir. U. Bank, (C. 1936), F. A. 2d cert. Leonardi v. Nat. 81 2d 19 Cir. Chase Refugee Organization denied, 677; International v. Bank 298 S.U. Tobin, America, (S. 1949); Supp. D. Y. Schmitt v. 884 N. 86 F- (D. Tracy, 967, Supp. 1935); v. 4 15 Nev. Cadle Fed. Cas. F. 35 1873). (C. No. 2279 S. Y. C. D. N. problem evenly considering
The state about divided. courts bank must be sued in the where Some hold that a national
563 says, is that decision, appellee consequence our in national banks join unable to two litigant will be they if are located dif action in the state courts same they courts if are located ferent counties or the federal being presented But aside from not different districts. Congress a situation is a matter for cases, these such 1401; 1391 Green (a), (b), consider. Cf. 28 S. C. §§ U. Giannini, (C. Cir.). A. 2d berg 550, v. 140 F. 2d 552 Holland, Casualty Co. v. 346 S. also, Bankers & U. Life 379, 384. if even all of the 145 defendants
Similarly,
County
same
proceeding
be sued in one
Dallas
with the
is
facility
they may
County, this,
course,
Travis
from the command of the
departing
insufficient basis
Butte,
App.
833,
situated,
Monarch Wine Co. v.
113 Cal.
2d
249
(1952);
Bank,
2d
Nat.
240
P.
Crocker v. Marine
101 Mass.
(1869);
Corp.,
312, 96
Rabinowitz v. Kaiser-Frazer
198 Misc.
(Sup.
1950);
Angeles Bank,
N. Y.
2d
Ct.
Raiola v. Los
630,
Supp.
(Sup.
1929);
North
Misc.
233 N. Y.
Ct.
Burns v.
Bank,
473,
(1935);
western Nat.
N. D.
564 no we have inten Nevertheless, though statute. pro on matters Texas venturing an opinion
tion of disagreement in cedure, parties the were when particularly are aware of Court, we argument before about them Langdeau Court, v. Supreme Texas ruling the the recent 358 S. W. 2d Co., - Tex. -, Burke Investment permissive, (4), Art. 21.28 Code, Insurance holding Texas restricting receiver to suits thus not the mandatory, not noted that Texas have also receivership the court. We permit the transfer of might very well procedural rules County. Tex. Civ. Proc. to Dallas Rules the entire case 14 Scott, 65; Tex. 160 S. W. 89; Tunstill v. 2d Kohler, (Tex. App.). Terrell 2d 531 Civ. 48 S. W. v. permit appears Proc. 16415 Moreover, Tex. Rules Civ. im plea prejudice of suits without dismissal Welch, Luck is see S. W. proper sustained, v. venue Wiley Joiner, 223 (Tex. 2d ref. n. r. App., e.); Civ. way for (Tex. App.), opening 2d a new W. Civ. (4) brought be suit which Article 1995 indicates could County.17 Dallas 14 “Transferred, Plea Is Sustained. if plea privilege sustained, dismissed, “If the cause shall not be proper . . . .” but shall cause to the court transfer said 1955). (Vernon Tex. Rules Civ. Proc. 15 “Non-Suit. any jury may retired, plaintiff
“At before time has take a thereby prejudice right non-suit, but he shall not of an adverse party his be heard on claim affirmative relief. When the case may judge, is tried such be non-suit taken at time before (Vernon 1955). the decision is announced.” Tex. Rules Civ. Proc. 16 “Venue, general rule “4. counties. —If two or more Defendants different defendants counties, any county reside in different suit where (4), one of defendants resides.” Art. 1995 Tex. Rev. Civ. Stat. (Vernon 1950). permit joinder sure, To be Texas law does frivolous of defend *9 Stockyards Maples, Nat. Bank venue, to desired see ants insure a
Appellee, finally, attempts his problem avoid venue entirely by denying the very § existence of 5198, Rev. (1878). Stat. Section 5198, appellee says, repealed was proviso to 4 of the Act of July 12, 1882: jurisdiction for “[T]he suits hereafter brought by or against any association . . . shall be the same as, and not other than, the jurisdiction for suits against banks not organized under any law of the United States .... And all laws and parts of laws of the United States inconsistent with proviso be, the same are hereby, repealed.” It is also said that 28 S. C. 1348,19 U. derived from the Act of March 3, 1887,20 4§ re-enacts inAct, somewhat modified form, thus continuing congres- sional intent to repeal § 5198 the extent pre- scribes the venue of suits in state courts. See 161 Tex., at 341 S. 2d,W. at 166.
Since 4§ of the Act of 1882 and its do successors expressly repeal § 5198, appellee’s contention is neces- sarily one of implied repeal requiring some manifest incon- sistency or positive repugnance between the two statutes. United Co., States v. Borden 308 U. S. 188, 198-199. We find neither here. Section 5198, as construed the Charlotte Nat. Bank case, is essentially a venue statute governing the proper location of suits against banks either federal or state courts, whereas § 4 of the Act and the 1887 Act designed were Tex. 95 S. 2d 1300, W. nothing but before us indicates that appellee will difficulty find in sustaining his burden to establish that the defendant national banks are County residents of Dallas that, alleges, as he his cause of action them has a substantial and valid basis. 18 Appendix, See No. 6. See 13, supra, note for state cases which have reached the same conclusion. 19 Appendix, See No. 8. 20 Appendix, No. 7.
566 which Stat.21 and 629 Rev. 563 of §§ the effect
overcome federal the and be sued sue to banks national allowed were they because solely courts circuit district amount diversity, to regard without banks, national question a federal or the existence controversy with limit, to sought 4 apparently Section sense. usual and their to, banks of national access the exceptions, to which extent same to the courts the suability in, limited.22 are so banks non-national pur- § that recognized Court of this Decisions juris- matters of federal no more than with to deal ported Bank National Continental observed As we diction. 119, 123-124: Buford, S. U. to legislation was necessary effect “The the States . . citizens of . national banks make with- and to located, respectively they were jurisdiction to the invoke right draw’ from them simply States of the United Courts of the Circuit by exercised they created that were ground pur- Congress. No other under acts powers their to effect Congress than imputed to can be pose result.” 21 Appendix, 5.No. appeared first as an amend proviso Act The § Hammond, by Representative floor of the House
ment offered on the assignment bill fixing pursuant of the House to the order Cong. Mr. special Rec. order. See H. 4167 as R. purpose succinctly of his follows: stated the amendment Hammond jurisdictional limits for therefore, that the “My amendment, declares they be in the same as would shall be to a national bank and as doing actually doing might be busi or which regard bank to a State Cong. they side; shall be one and the same.” 13 its ness asked, I “As understand Rec., Robinson then at 4049. Mr. simply that a amendment, effect, to this proposed gentleman’s subject shall be a certain doing business within State bank precisely regulations to jurisdiction same purposes all subject.” organized there, would be Mr. Ham bank, if which a State is all.” Ibid. replied, “That mond See also Leather Cooper, Bank v. Manufacturers’ nothing U. S. 778. subsequent history Moreover, of this statute, now 28 § U. C. warrants the con- clusion that Congress even sought, implication, relax the venue restrictions of 5198.
The provisions fully of 5198 are effective and must be recognized they are duly raised. judgments Supreme the Texas are reversed and Court the causes *11 remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded. Mr. Justice- Black Douglas, and Mr. Justice while agreeing with the Court the judgments are “final,” dissent on the merits of the controversy.
Mr. Justice Clark took no part the consideration or decision of these cases. dissenting opinion of Mr. Harlan,
[For Justice see post, p. 572.]
APPENDIX TO OPINION OF THE COURT. 1. The Act of February 25, c. 58:
“Sec. 11. And enacted, be it every That further association pursuant formed to the provisions of this act may make and use a common and shall seal, succession by the designated name in its articles of association and period for the limited therein, not, however, exceeding twenty years from the passage act; by this may such name contracts, make sue and be sued, complain and defend in any court of law equity or fully as as persons natural . . . .” 12 Stat. 668.
“Sec. 59. And be it enacted, suits, That further actions, and proceedings by and against any associa- district, circuit, in any be had act tion under held within States of the United court or territorial may be estab- in which association such the district 12 Stat. 681. lished.” c. 3, 1864, June 106: Act
2. The may make . . . association 8. ... Such “Sec. defend, in complain and sued, and be contracts, sue per- natural fully as equity law and any court (1873). Stat. 101; Rev. 13 Stat. sons.” proceed- actions, suits, That ... “Sec. may be act, under this any association ings, against court of or territorial district, any circuit, had in such which district in within the held States United state, or in established; may be association city court in municipal county, having jurisdiction located, association said however, all pro- That Provided, cases: in similar act shall under this comptroller ceedings enjoin or territorial district, circuit, had in *12 which the asso- district in States, held United 116-117. 13 Stat. located.” ciation is Banks, 62, National from Title was omitted Section 57 3. added It was of 1873. Statutes in the Revised Act of Banks, by the National Title 5198 of 320. Section 1875, 80, c. 18 Stat. February 18, as follows: amended, reads reserving, or receiving, taking, The 5198. “Sec. by than allowed greater a rate of interest charging knowingly done, shall be section, preceding which of the entire interest a forfeiture deemed it, debt carries with or other evidence of bill, note, In agreed paid be thereon. has been or which paid, the of interest has been greater rate case the legal repre- has been or paid, whom it his person sentatives, may recover in back, an action in nature of an action of debt, twice the amount of the interest paid thus from the association taking or receiving the same; provided such action is com- menced years within two from the time the usurious transaction suits, occurred. actions, That and pro- ceedings against any association under may this title be had in any circuit, district, or territorial court of the United States held within the district such association established, State, or any county, or municipal court the county or city which said association is located having jurisdiction in similar'cases.” (Amendment italics.) 4. portion of § 5198, Rev. Stat. (1878), relating to
suits in federal and state courts, derived from § the 1864 Act, appears now as U. C. § 94:
Ҥ 94. Venue of suits.
“Actions and proceedings against any association under this chapter may be had in any district or Ter- ritorial the United States held within the district in which such association bemay established, or in any State, county, municipal court in the county or city in which said association is located having jurisdiction in similar cases.” Title has yet not as been enacted positive into law. 5. Revised Statutes of T873, Title 13, The Judiciary, 3,c.
District Courts —Jurisdiction.
“Sec. the district courts shall have jurisdic- tion as follows: . . . Fifteenth. Of all suits against any association established under law *13 providing for national banking associations within the district for which the court is held.” Revised Statutes of 1873, 13, Title The Judiciary, 7,c.
Circuit Court —Jurisdiction. original shall courts circuit The
“Sec. 629. all suits Of . Tenth. . . as follows: jurisdiction the established banking association any against or law any under held, the court which for district banking associations.” for national providing of 57§ part from derived were provisions These the jurisdiction conferred Act which the 1864 courts. an Act 162, 22 Stat. 290, e. July 12, 1882, ofAct their to extend associations banking enable Sec- purposes. for other existence, and corporate following proviso: the contained Act 4 of tion for however, jurisdiction the That Provided, “. . . association any by or hereafter suits national- for providing law any under established and them between except suits associations, banking be shall agents, and officers States, its the United jurisdiction than, the not other as, and the same under organized not banks by or suits do might bank- do States United law national-banking associations such where ing business begun: may be such suits doing business may States laws of the United parts all laws And the same be, proviso with inconsistent 1 22 Stat. 163. repealed.” hereby, Supple is included of 1882 the Act proviso to 4 of despite the 1891), (2d ed. at Statutes ment Revised at 614. 1888, appearing 1887 and Acts of duplication of the apparent Code, first official States appear the 1925 United It does presumptively statutes States of all United since restatement cited on Revision evidently because effect, Committee 1922, July 1, 1833, by the Act of repealed, 44 Stat. Act as entire 1882 Title 28 1948 codification 767. When 2, 42 Stat. c. expressly was of 1882 the Act proviso to enacted, §4 was (1948). repealed. 62 Stat. §39 *14 7. Act of March 3, 1887, c. 373, as amended the Act
of August 13, 1888, c. 866.
“Sec. 4. That all national banking associations established under the laws of the United shall, States for purposes of all actions by them, real, personal, or and all mixed, suits in equity, be deemed of citizens the States in which they are re- spectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such they as would cases between individual of citizens the same State. provisions
“The of this section shall be held to affect the jurisdiction of the courts of the United States in cases commenced the United States or by direction of any officer thereof, or cases winding for up the affairs any such bank.” Stat. 8. 28 U. S. §C. 1348 the present contains version of the
matters covered the Acts of 1882, 1887 and 1888:
Ҥ 1348. Banking association as party.
“The district courts shall have original jurisdic- tion any civil action commenced by the United States, by direction officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the for district which the court is held, under chapter 2 Title to enjoin Comptroller of the Currency, or any acting receiver under his direction, provided by such chapter. 2The Acts of 1887 repealed and 1888 were when the 1911 codifica judiciary tion judicial procedure provisions was enacted.
Act of 3, 1911, March 231, §297, c. provisions Stat. 1168. These became 24 of the § Judicial Code of (1940 ed.) U. S. C. (16), and then Title 28 enacted in 1948. shall, banking associations
“All them, by or actions other of all purposes they of the States citizens deemed located.” respectively *15 dissenting. Harlan,
Mr. Justice of and some appeals, these opinion The Court’s ante, Curry, p. Laborers v. in Construction things said “finality” of statutory requirement into the deeply cut judgments.1 court state review to jurisdiction our limiting rule a technical more than is requirement That exigencies be to need yielding jsrocedure, and long-standing it is Rather, situations. particular and courts litigants protects that policy healthy federal forecloses and review piecemeal disruptions from issues on constitutional passing from Court this thus case, of a outcome final dissipated federal-state undesirable a minimum keep to to helping opinion, my precludes, it instance In this conflicts. stage at this jurisdiction appellate of our the exercise proceedings. reviewed to be sought now judgments court The state was venue determination than a more nothing appel these suit where laid properly tanta being determination, brought. Such was lants exam a classic dismiss, is a motion to a denial mount towards step only ruling that interlocutory an ple of aas in itself reviewable is not disposition ultimate States, S. 324 U. v. United Catlin judgment. final see 54.14; (1), 54.12 ¶¶ Practice Moore, Federal 229; States, 291- 2dF. Foods v. United also Clinton this jurisdiction of Court appellate limits 1 28 S.U. C. § highest by the judgments rendered or decrees review of “[f]mal be had.” could a decision in which of a State 292, and cases cited therein.2 fits squarely It within the general rule that a judgment is not final unless termi- litigation nates the and leaves nothing to be done but enforce execution what has been demanded. See Parr v. United States, 351 U. S.
It is true that several specific, narrowly circum- scribed, exceptions to general rule have been devel- oped in order to deal with extraordinary situations where a judgment is final in substance although not in form. But these appeals do not fall within any of these exceptions.
Thus this is not a situation in which what remains to be
done in the state courts
ais mere formality,
inor which
the appellants concede that their whole case must stand or
fall on the federal claim. Compare
Oil
Corp.
Richfield
State Board
Equalization, 329 U.
69;
Pope
v. At-
*16
lantic Coast Line R. Co.,
Nor are these appeals like Radio Station WOW v. John- son, 326 120, U. S. where the challenged order required an immediate transfer of property, and where the remaining matters left to be disposed of in the state court were wholly unrelated, would almost certainly have no raised federal question, and could not have mooted question the sought to be reviewed. Here, a victory for appellants on the merits would clearly moot the question before us today. “It is of course not our province to discourage appeals. But for reasons, the soundest of we 2As the Court stated in the case, Catlin S.,U. at 236: “[D]enial of a motion to dismiss, even when the motion is upon jurisdic based grounds, tional is not immediately reviewable. . . . Certainly this is true question whenever the may be disposition saved for upon re view judgment of final disposing of all issues involved in the litigation they have before issues on constitutional pass to not
ought v. Co. Gas Natural Republic stop.” definitive a reached 62, Oklahoma, 334 U. S. merits, the the lost on appellants if hand, other
theOn then would appeals present in the raised question venue controversy the Hence Court. by this review for open be Industrial Cohen from Beneficial wholly different is order challenged where S. Corp., 337 U. Loan judgment final merged been have not would no granted, been had review where, immediate unless ever could claimed right determination appellate been obtained. exceptions, limited these within to come Failing they that assertion familiar on fall back appellants trial a burdensome subjected be should not compelling. Court finds which claim forum, a wrong there is accepted, cannot a claim surely such But ruling prelimi- variety situations large is to the case or not whether determine will matter nary definitively termi- not does that decision yet a continue; hard- rely on the To final. plainly case is nate away with the to do is to trial' being subjected ship It final orders. interlocutory between distinction always held has the Court reason for this a pre- not invest does trial subjected being hazard g.,E. appeal. finality requisite ruling with liminary 513, 519-520. States, 351 U. v. United Parr In Cincinnati impression. of first case not a This is *17 company railway the Snell, 179 U. R. Co. Street highest by the a determination from appeal sought and re- venue change of a directing of the State railway The proceedings. further the case manding the law under the state contended that company was unconstitutional. ordered been had change venue of appellants the since point, squarely is thus The case appli- of constitutionality the the challenging are also here cation local venue provisions. This unanimously Court dismissed the writ of error for lack finality, stating:
“It is true the order from appealed finally that that a adjudges change of should venue been allowed; but the same upon comment made dozens of interlocutory orders made in the progress of a cause. an Indeed, scarcely imaginable order is finally which does not dispose particular of some point arising in case; but that not justify does review of such order, until the action itself finally has been If disposed every of. order final, were which finally passes upon some motion by made one or the other parties to a cause, might in some cases require a dozen writs of error to dispose finally of the case.” 179 U. S.. at 397.
The Cincinnati also case shows invalidity argument of these appellants that they may be spared a trial if their venue claim is presently sustained. For the Court in Cincinnati was unmoved the circumstance railway company there already had won a jury verdict which had been set aside the state court because of faulty A fortiori, venue. in a proceeding where the action .has yet been tried, the Court should be deaf to the similar claims of these appellants.
The Court's decision these appeals throws the law of finality into great state of uncertainty and Iwill, am afraid, tend to increase future at piecemeal efforts review.3 appeals
These should be dismissed. appears suggest Court appeals unique these because the appealable decisions were under state law and because national banks making arc a substantial claim a conflict between a and state But I statute. fail to how appealability see interlocutory orders law, under state identity appellants, substantiality or the of the federal claim asserted can have bear ing judgments appealed whether the from are final.