226 U.S. 99

33 S.Ct. 78

57 L.Ed. 138


No. 40.

Argued November 6, 1912.

Decided December 2, 1912.

Messrs. Thomas Gilmore, Edward N. Pugh, and J. C. Gilmore for plaintiff in error.

The court declined to hear Mr. Ruffin G. Pleasant, Attorney General of Louisiana, for Conservation Commission, and Mr. John Dymond, Jr., for E. C. Joullian Canning Company and Dunbars, Lopez, & Dukate Company.

Mr. Walter Guion, former Attorney General of Louisiana, and Mr. John C. Wickliffe for the Oyster Commission of Louisiana.

Mr. Chief Justice White delivered the opinion of the court:


The supreme court of Louisiana in this case reviewed the judgment of a trial court which dismissed the petition of the plaintiff because it stated no cause of action. The plaintiff in error here was plaintiff in the trial court and appellant in the court below. The suit was based on an alleged right to recover damages for slander of the title of plaintiff to described lands. Under the law of Louisiana, for the purpose of passing upon the exception of no cause of action, the case in substance became one petitory in its character,—that is, one to try title to land. Treating the action as of that nature, the court below elaborately reviewed the averments of the petition, and expressed the opinion that in some respects a cause of action was stated,—that is, that there was allegation of title as to some of the land, and that there was no title alleged to other of the land involved. The court concluded as follows:


'We think, therefore, that plaintiff should be again afforded an opportunity to amend its petition . . . by setting forth specifically the particular places or portions of its property upon which the alleged trespass has been committed, together with the time and manner of the trespass.'

The judgment was as follows:


'It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that this case be remanded to the district court, to be there proceeded with in accordance with the views expressed in this opinion . . . ' [125 La. 755, 756, 51 So. 706.]


Upon the theory that Federal questions were involved within the cognizance of this court, this writ of error to the judgment thus rendered was sued out. But as the judgment of the court below on its face is not a final one, it follows that a motion to dismiss must prevail. Haseltine v. Central Nat. Bank, 183 U. S. 130, 46 L. ed. 117, 22 Sup. Ct. Rep. 49; Schlosser v. Hemphill, 198 U. S. 173, 49 L. ed. 1001, 25 Sup. Ct. Rep. 654; Missouri & K. I. R. Co. v. Olathe, 222 U. S. 185, 56 L. ed. 155, 32 Sup. Ct. Rep. 46.


The contention, however, is that the judgment below is final for the purpose of review by this court, because, when the opinion of the supreme court of Louisiana is carefully weighed, it will be found that that court practically finally disposed adversely to the title of the plaintiff of the substantial part of the lands involved in the suit, and hence that the court, in remanding the cause for further proceedings, did so only as to other lands. But conceding this to be true, it does not justify the claim based on it. In the first place, it is settled that this court may not be called upon to review by piecemeal the action of a state court which otherwise would be within its jurisdiction, and in the second place, the rule established by the authorities to which we have referred is that, on the question of finality, the form of the judgment is controlling, and hence that this court cannot, for the purpose of determining whether its reviewing power exists, be called upon to disregard the form of the judgment in order to ascertain whether a judgment which is in form not final might, by applying the state law, be treated as final in character. Indeed, it has been pointed out that the confusion and contradiction which inevitably arose from resorting to the state law for the purpose of converting a judgment not on its face final into one final in character was the dominating reason leading to the establishment of the principle that the form of the judgment was controlling for the purpose of ascertaining its finality. Norfolk & S. Turnp. Co. v. Virginia, 225 U. S. 264, 268, 56 L. ed. 1082, 1085, 32 Sup. Ct. Rep. 828.


The suggestion that the right to review by this court will be lost if it does not disregard the form of the judgment, and review the action of the court below concerning the title to land as to which the court below expressed opinions which, as the law of the case, will hereafter be binding upon it and upon other courts of the state of Louisiana, is without merit. We say this because the contention is but illustrative of the misconception which the argument involves, which we have already pointed out. The rule which excludes the right to review questions arising in a cause depending in a state court until a final judgment is rendered by such court involves as a necessary correlative the power and the duty of this court when a final judgment in form is rendered and the cause is brought here for review, to consider and pass upon all the Federal controversies in the cause, irrespective of how far it may be that by the state law such questions were concluded during the litigation, and before a final judgment susceptible of review here was rendered. Chesapeake & O. R. Co. v. McCabe, 213 U. S. 207, 214, 53 L. ed. 765, 768, 29 Sup. Ct. Rep. 430.


Of course, for the purpose of disposing of the motion to dismiss upon the ground of the want of finality of the judgment, we have taken it for granted, for the sake of the argument, that the case otherwise involved Federal questions within our power to review.


Dismissed for want of jurisdiction.

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