Woodbridge & Turner Engineering Co. v. Ritter

70 F. 679, 1895 U.S. App. LEXIS 3219

Opinion

DALLAS, Circuit Judge.

The act “to establish circuit courts of appeals,” etc., provides that writs of error may be taken from the circuit courts direct to the supreme court in any case in which the jurisdiction of the court is in issue, and that in such cases the question of jurisdiction alone shall be certified. In this case there is no such issue or question, and the assumption to the contrary, upon which this petition is founded, is, in my opinion, a mistaken one. The jurisdiction of the court was not drawn in question by the mere controversion of the right of the plaintiif to the judgment which has been entered in its favor, nor is the authority of the court to enter that judgment put in issue by the allegation that it is erroneous. Cook Co. v. Calumet & C. Canal & Dock Co., 138 U. S. 653, 11 Sup. Ct. 435. It is true that the petitioner has asserted, in the affidavit of defense, which has been adjudged insufficient, that the facts therein set forth are jurisdictional facts, but this incorrect assertion does not impress that character upon them. I see no reason to doubt that this judgment is reviewable by the court of appeals for this circuit, and, should a petition for the allowance of a writ of error to that end be presented, it will be entertained. The prayer of this petition is denied.