THE CARLO POMA.

255 U.S. 219

41 S.Ct. 309

65 L.Ed. 594

THE CARLO POMA.

No. 167.

Argued Jan. 26 and 27, 1920.

Decided Feb. 28, 1921.

Messrs. Oscar R. Houston, of New York City, Harold V. Amberg, of Washington, D. C., and D. Roger Englar, of New York City, for petitioner.

Messrs. Van Vechten Veeder and Charles C. Burlingham, both of New York City, for respondent.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

1

This case is much like that of The Pesaro, 255 U. S. 216, 41 Sup. Ct. 308, 65 L. Ed. ——. The only difference requiring notice is that the appeal in that case was to this court while in this it was to the Circuit Court of Appeals, which rendered a decree of affirmance. 259 Fed. 369, 179 C. C. A. 345. A writ of certiorari brings that decree here for review. Cavallaro v. Carlo Poma, 250 U. S. 656, 40 Sup. Ct. 14, 63 L. Ed. 1192.

2

The question raised and decided in the District Court was whether, sitting as a court of admiralty, it could entertain a suit in rem against a ship such as the Carlo Poma was represented to be in the suggestion of the Italian Ambassador. That was a jurisdictional question in the sense of section 238 of the Judicial Code. The Pesaro, supra. The court resolved it in the negative and accordingly released the ship from arrest, thereby disposing of the suit adversely to the libelant.

3

From that decree an appeal did not lie to the Circuit Court of Appeals, but only to this court. Such is the effect of the statute, Judicial Code, §§ 128, 238 (Comp. St. §§ 1120, 1215), defining and regulating the appellate jurisdiction of this court and of the Circuit Courts of Appeals, as is pointed out in United States v. Jahn, 155 U. S. 109, 114, 15 Sup. Ct. 39, 39 L. Ed. 87. In that case, after an extended review of the statute, it was said:

4

'If the jurisdiction of the Circuit Court [now District Court] is in issue and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified and take his appeal or writ of error directly to this court.'

5

As therefore the decree in the District Court was not open to review by the Circuit Court of Appeals, we must vacate the latter's decision and remand the case to it with a direction to dismiss the appeal. See Union & Planters' Bank v. Memphis, 189 U. S. 71, 73, 74, 23 Sup. Ct. 604, 47 L. Ed. 712; Carolina Glass Co. v. South Carolina, 240 U. S. 305, 318, 36 Sup. Ct. 293, 60 L. Ed. 658.

6

Decree of Circuit Court of Appeals vacated, with direction to dismiss appeal from District Court.

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