In re Aspinwall's Estate

Third Circuit

In re Aspinwall's Estate

90 F. 675, 33 C.C.A. 217, 1898 U.S. App. LEXIS 1726

CourtCourt of Appeals for the Third Circuit

DecidedNovember 21, 1898

DocketNo. 45

StatusPublished

Cited by2 cases

This text of 90 F. 675 (In re Aspinwall's Estate) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Aspinwall's Estate, 90 F. 675, 33 C.C.A. 217, 1898 U.S. App. LEXIS 1726 (3d Cir. 1898).

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DALLAS, Circuit Judge.

When this case was reached at the present term, it appeared that a motion to dismiss the appeal had been interposed; and that motion, after argument, it was announced would be granted. No formal dismissal of the appeal was, however, then entered, because we thought that the order should be accompanied by a shdement of the grounds upon which it was based. Such a statement will now be made, but very briefly, and without elaboration.

1. The decision of ihe circuit court, which was appealed from, adjudged that ihe proceeding, which had been brought into that court by removal from the orphans’ court of Allegheny county, Pa., should be remanded to the last-mentioned court. 83 Fed. 851. The remanding order was expressly founded solely upon the lack of jurisdiction in the circuit court to take cognizance of the cause; and the question before us is, has this court jurisdiction to review such a decision of the circuit court? If it lias, it must be because it: is conferred upon it by section 6 of tbe act of March 3, 1891. Now, by that section it is provided that the circuit courts of appeals shall exercise appellate jurisdiction to review final decisions of the circuit courts only in cases other than those provided for in section 5 of the same act; and, turning to section 5, we find it to be there provided that appeals or writs of error may be taken [676]*676from tbe circuit courts direct to the supreme court in any case in which the jurisdiction of a circuit court is in issue. We are all of opinion that the necessary effect of these provisions is to deny to this court the jurisdiction which in this case it has been asked to assume.

2. This question was before the circuit court of appeals for the First circuit in Re Coe, 1 C. C. A. 326, 49 Fed. 481; and it was there held that the disallowance of an appeal from an order remanding a cause to the state court in which it had originated was proper. It has been urged in argument that the reasons given for the judgment in that case are unsound, but that contention is, in our view of the matter, irrelevant. We believe it to be our duty to follow that judgment, not for the reasons assigned in its support, which it is not necessary either to adopt or to reject, but because uniformity of decision amongst the several courts of appeals upon such a jurisdictional question seems to us to be of paramount importance. It will not result from acceptance of this view of the subject that an error once committed would be indefinitely perpetuated, for the supreme court may at any time settle such questions for all the courts of appeals alike. An order will now be entered dismissing the appeal, with costs.

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DALLAS, Circuit Judge.

When this case was reached at the present term, it appeared that a motion to dismiss the appeal had been interposed; and that motion, after argument, it was announced would be granted. No formal dismissal of the appeal was, however, then entered, because we thought that the order should be accompanied by a shdement of the grounds upon which it was based. Such a statement will now be made, but very briefly, and without elaboration.

1. The decision of ihe circuit court, which was appealed from, adjudged that ihe proceeding, which had been brought into that court by removal from the orphans’ court of Allegheny county, Pa., should be remanded to the last-mentioned court. 83 Fed. 851. The remanding order was expressly founded solely upon the lack of jurisdiction in the circuit court to take cognizance of the cause; and the question before us is, has this court jurisdiction to review such a decision of the circuit court? If it lias, it must be because it: is conferred upon it by section 6 of tbe act of March 3, 1891. Now, by that section it is provided that the circuit courts of appeals shall exercise appellate jurisdiction to review final decisions of the circuit courts only in cases other than those provided for in section 5 of the same act; and, turning to section 5, we find it to be there provided that appeals or writs of error may be taken [676]*676from tbe circuit courts direct to the supreme court in any case in which the jurisdiction of a circuit court is in issue. We are all of opinion that the necessary effect of these provisions is to deny to this court the jurisdiction which in this case it has been asked to assume.

2. This question was before the circuit court of appeals for the First circuit in Re Coe, 1 C. C. A. 326, 49 Fed. 481; and it was there held that the disallowance of an appeal from an order remanding a cause to the state court in which it had originated was proper. It has been urged in argument that the reasons given for the judgment in that case are unsound, but that contention is, in our view of the matter, irrelevant. We believe it to be our duty to follow that judgment, not for the reasons assigned in its support, which it is not necessary either to adopt or to reject, but because uniformity of decision amongst the several courts of appeals upon such a jurisdictional question seems to us to be of paramount importance. It will not result from acceptance of this view of the subject that an error once committed would be indefinitely perpetuated, for the supreme court may at any time settle such questions for all the courts of appeals alike. An order will now be entered dismissing the appeal, with costs.

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90 F. 675, 33 C.C.A. 217, 1898 U.S. App. LEXIS 1726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aspinwalls-estate-ca3-1898.

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