# Atherton v. Fowler (91 U.S. 143)

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United States Supreme Court
91 U.S. 143
Atherton v. Fowler
MOTION to dismiss a writ of error to the Supreme Court of the State of California.
This is an action of replevin, brought in the District Court for the Fourth Judicial District of the State of California, to recover certain hay cut from lands in Solano County, to which the plaintiffs claimed title in consequence of rights alleged to have been acquired under an act of Congress entitled 'An act to grant the right of pre-emption to certain purchasers on the 'Soscol Ranch,' in the State of California,' approved March 3, 1863. 12 Stat. 808. The plaintiff having died pendente lite, his executors were substituted in his stead. The defendants denied the plaintiff's title, and averred that they, in good faith and under color of title, held the land adversely to his pretended claim. The jury found a verdict in favor of the defendants for the value of the hay in controversy, with interest thereon. Judgment was for the defendants for $13,896.43. The plaintiffs appealed to the Supreme Court of the State, which adjudged 'that the judgment be reversed, and the cause remanded, with directions to the court below to proceed to try the cause anew, unless, within twenty days after the filing of the remittitur in the court below, the defendants shall file with the clerk of that court a written consent that the judgment be modified by striking out the damages therein awarded, and inserting, in lieu thereof, the sum of $8,989; and, upon such consent being filed, it is ordered that the judgment be modified accordingly, and also that it be made payable in due course of administration.' The written consent of the defendants having been filed in the District Court, the judgment of that court was modified as ordered by the Supreme Court.
On the fourteenth day of July, 1875, the plaintiffs sued out this writ of error, directed to the Supreme Court of California. The writ bears test on the day of its issue, but contains no return day.
Mr. M. A. Wheaton for the defendants in error, in support of the motion to dismiss.
The State court having decided the case upon principles of law as recognized and administered in California, and without reference to the construction or effect of any provision in the Constitution or any act of Congress, no jurisdiction exists in this court to review that decision, even though, in some other aspect of the case, a Federal question might possibly have been applicable, but upon which the State court did not pass. Insurance Co. v. The Treasurer, 11 Wall. 209; Klinger v. Missouri, 13 id. 263; West Tennessee Bank v. Citizens' Bank, id. 432; Caperton v. Bowyer, 14 id. 216; Commercial Bank v. Rochester, 15 id. 639; Marquez v. Bloom, 16 id. 351; Crowell v. Randall, 10 Pet. 397; Farney v. Towle, 1 Black, 351; Boggs v. Mining Co., 3 Wall. 304; Maxwell v. Newbold, 18 How. 516; Hoyt v. Sheldon, 1 Black, 522.
A judgment of the highest court of a State reversing that of an inferior court, and awarding a venire de nove, is not a final judgment in the sense in which that term is used in the statute authorizing a review thereof by this court. Tracy v. Holcombe, 24 How. 426; Miners' Bank v. United States, 5 id. 214; Brown v. Union Bank, 4 id. 465; Weston v. Charlestown, 2 Pet. 449; Winn v. Jackson, 12 Wheat. 135; Houston v. Morse, 3 id. 434.
A judgment remanding a case to a lower court for further proceedings in accordance with the opinion is not such a final judgment. Pepper v. Dunlap, 5 How. 52; Moore v. Robbins, 18 Wall. 588; St. Clair v. Livingston, id. 628; Parcels v. Johnson, 20 id. 654.
If there has been any final judgment in this case, it must have been rendered by the District Court; to which, therefore, the writ of error should have issued. Gelston v. Hoyt, 3 Wheat. 304; Webster v. Reid, 11 How. 457; Miller v. Joseph, 17 Wall. 655; McGuire v. The Commonwealth, 3 id. 386.
Under the Judiciary Act of 1792, a writ made returnable on any other day then the first day of the next ensuing term was held void. Conklin's Treatise, p. 635; Insurance Co. v. Mordecai, 21 How. 200; Porter v. Foley, id. 393; Agricultural Co. v. Pierce County, 6 Wall. 246; Rules of S.C.., No. 8, Subdivision 5.
It was held, prior to the act of June 1, 1872, that this court had no power to amend the writ in this respect. Vide cases cited above. Hodge v. Williams, 22 How. 88; City of Washington v. Denison, 6 Wall. 496; Hampton v. Rouse, 15 id. 684.
The date of test of the writ is not a day of a term of this court. No application to amend being made, it is ground for dismissal. Conklin's Treatise, p. 634; 2 Abbott's U.S. Practice, p. 251.
Mr. Montgomery Blair, contra.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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