Fashnacht v. Frank

Supreme Court of the United States October 15, 1874

Fashnacht v. Frank, 90 U.S. 416 (1874)

Opinion of the Court

The CHIEF JUSTICE

delivered the opinion of the court.

Previous to the time when the motion for a new trial was made and overruled, no question had been presented in the cause that could under any circumstances give this court jurisdiction upon a writ of error. On the 23d of January a petition was filed by the defendant for the removal of the cause to the Circuit Court of the United States. This petition was at once very properly overruled, for the reason that a final judgment had already been rendered. No exception was taken to this ruling. So far as appears the defendant was satisfied, as he should have been, that he could not have relief in that form against the judgment which had *420been rendered. On the 31st of January an appeal from the judgment was taken to the Supreme Court of the State. This was clearly the appropriate remedy for the correction of the errors of the District Court, if there were any. The action of the District Court in refusing the removal does not appear to have been presented to the Supreme Court upon this appeal. It could not properly have been presented, because the appeal was from the judgment alone, and this action was subsequent to the judgment and independent of it. We act only upon the judgment of the Supreme Court. Only such questions as either have been or ought to have been passed upon by that court in the regular course of its proceedings can be considered by us upon error.

Writ of error dismissed.

Reference

Cited By: 1 case
Status: Published
Syllabus: Where in a suit pending before it a State court dissolves an injunction (previously granted by it on an allegation by the mortgagor, that the mortgagee had agreed to give him further time) against proceeding to sell mortgaged premises, under a foreclosure already had, and after such dissolution — the effect of which is, of course, to leave in force a final decree of sale — an alien defendant petitions for a removal into the Circuit Court under the act of July 27th, 1866, “for the removal of causes in certain cases from State courts,” and the State court refuses to grant that petition, the defendant not excepting, and the case is afterwards taken to the Supreme Court on an appeal from the decree dissolving the injunction, no jurisdiction exists here to review the judgment of the Supreme Court under section 709 of the Revised Statutes, and on the ground that a right, title, privilege, or immunity has been claimed under a statute of the United States, and that a decision of the highest court of the State where a decision could be had has been against it. The refusal of the State court to grant a removal under the act of Congress not having been excepted to, and that matter not having been involved in what was before the Supreme Court, its judgment cannot be held to have embraced it, nor indeed anything but the matter of the dissolution of the injunction; a matter which involved no Federal question.