United States ex rel. Miller v. Babcock

293 F. 195, 1923 U.S. App. LEXIS 1596

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 1923
• Docket: Nos. 4082, 4083
• Status: Published

Opinion

GILBER.T, Circuit Judge.

These two actions were brought in the court below by the United States, on the relation of Thomas W. Miller, Alien Property Custodian of the United States, against the State Treasurer and the State Auditor of the state of Washington. Demurrer was interposed in each action on the ground that the court had no jurisdiction of the defendant or of the subject-matter, and on the further ground that there was failure to state facts sufficient to constitute a cause of action. For want of jurisdiction the court below sustained the demurrers and dismissed the actions. Upon writs ox error from this court the appellate jurisdiction of this court is challenged.

Where the jurisdiction of the District Court is put in issue, as here, and the objection to the jurisdiction is sustained, the judgment or decree is not subject to review by this court on appeal or writ of error. United States v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87; The Carlo Poma, 255 U. S. 220, 41 Sup. Ct. 309, 65 L. Ed. 594; Jud. Code, §§ 128, 238 (Comp. St. §§ 1120, 1215).

Since the writs of error in these cases should have issued from the Supreme Court instead of this court, it is ordered that the said causes be, and they hereby are, transferred to the Supreme Court, as directed by .the Act of Congress of September 14, 1922 (42 Stat. 837), amending the Judicial Code by adding thereto section 238 (a).