105 F. 663 | 7th Cir. | 1901
after making the foregoing statement, delivered the opinion of the court.
The hill of exceptions having been stricken out, the point is made by the appellee that the “only question now raised upon the record is" that of the jurisdiction of the lower court,” and that “the writ of error should be dismissed for want of jurisdiction in this court to entertain it.” Manufacturing Co. v. Barber, 18 U. S. App. 476, 9 C. C. A. 79, 60 Fed. 465; Beck & Pauli Lithographing Co. v. Wacker & Birk Brewing & Malting Co., 46 U. S. App. 486, 22 C. C. A. 11, 76 Fed. 10, — are cited. This proposition assumes that, as the case stood before the bill of exceptions had been stricken out, the question of jurisdiction, in connection with other questions, was within the rightful cognizance of this court, and, if so, the power to decide it was not lost by passing upon or disposing of other questions first. A party against whom a judgment is rendered, instead of going to the supreme court upon a certificate of the question of jurisdiction alone, may take “the whole case” to the circuit court of appeals; and that court may then decide, or, if it deem proper, certify the question of jurisdiction to the supreme court. This was declared in McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, 35 L. Ed. 893, and reaffirmed in U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87, in an opinion from which we quote the following:
“Of course, tlie power to certify assumes tlie power to decide.” “Although the question of jurisdiction was not put in issue in the circuit court, still, as the objection in the circuit court of appeals went to jurisdiction over the subject-matter, no omission in that regard could supply absolute want of power, and the circuit court of appeals was bound to take notice of the question.” “It is conceded that the United States had assigned errors on the merits, as well as the error under consideration, and as the question of jurisdiction lay at the threshold,” etc.
Just what scope may be given to the phrase “upon the whole case,” as used by the supreme court in these cases, is uncertain. In the opinion of this court in Beck & Pauli Lithographing Co. v. Wacker & Birk Brewing & Malting Co., supra, it was said:
“It is clear, therefore, upon tlie weight, of authority, that a question of jurisdiction alone may not be taken to a court of appeals, though, on principle, once the supreme court liad enunciated the doctrine of ¡McLish v. Koi'f, it is difficult to see wliy such a question may not be entertained and decided by one of those courts as well when standing alone and constituting tlie whole case as when accompanied with another or other questions, which might tie injected on mere pretense, in order to obviate tlie objection to jurisdiction.”
In this case, as in U. S. v. Jahn, errors were assigned upon the merits; and this court, being bound to take notice of the question of jurisdiction, as one lying at the threshold, had power to dispose of1 it before c-oiisjclering the motion to suppress the hill of exceptions. Primarily, s± Pvm, the assignment of errors determines the scope of an appeal, and, i in any case errors other than the lack of jurisdiction in the love i1 eovrt are asserted, the “whole case” is before the court:, including ihe question of jurisdiction, if there be such qi‘‘¡ukuj, notwitln.it;¡>*¿Iipg it may be found on an examination that
If, however, the case were to be considered as if there had been no bill of exceptions in the record, and the specifications of error dependent thereon were eliminated, the power of this court to consider the question of the jurisdiction below would still be clear, since, aside from that question, the sufficiency of the declaration to sustain the judgment, upon any theory of the nature of the cause of action, is disputed. The last specification of error is that the court erred in entering judgment for the plaintiff and against the defendant. An assignment so general as this the court may refuse to consider, but is not bound to do so. See World’s Columbian Exposition Co. v. Republic of France, 33 C. C. A. 333, 91 Fed. 64. As was there said, “It is fundamental that a judgment cannot stand unless the facts of record, apart from any showing by the bill of exceptions, aided as far as may be by the verdict, will support it;” and, if the lack of essential facts be plain, this court, in accordance with rule 11, may take cognizance of the error, though it be not well assigned. It cannot be said in this case that, besides the question of jurisdiction of the court over the parties and the subject-matter, there does not arise the question of the sufficiency of facts of recpitfU") support the judgment rendered. To illustrate: It is pointed (3ut that the declaration contains no averment of ownership of thg patents referred to at and during the time covered by the transactions out of which Che right of action is supposed to have arisen. .It may be, as insisted, that in that and other particulars the verdict-has cured whatever de
The judgment below is reversed, and the cause remanded, with direction to dismiss the action, unless, on such terms in respect to costs as the court shall determine, leave shall be given for a further amendment of the declaration.