As this appeal was taken long after the act of March 3, 1891, establishing the court of appeals, went into effect, it should have been taken to the court of appeals of the Fifth circuit, unless the case be one within the fifth section of the act, wherein the jurisdiction of the court is in issue. In such cases, however, 'the question of jurisdiction alone shall be certified to the supreme court from the court below for decision.' There is an entire absence of such certificate in this case,-an absence which was held to be fatal to the appeal in Maynard v. Hecht, 151 U.S. 324, 14 Sup. Ct. 353; Moran v. Hagerman, 151 U.S. 329, 14 Sup. Ct. 354; Colvin v. City of Jacksonville, 157 U.S. 368, 15 Sup. Ct. 634; and Manufacturing Co. v. Barber, 157 U.S. 673, 15 Sup. Ct. 719. It is true that in Re Lehigh Min. & Manuf'g Co., 156 U.S. 322, 15 Sup. Ct. 375, we held that the certificate was not necessary, inasmuch as it appeared in the decree that the question involved was only a question of jurisdiction, and the judgment not only recited that the court considered it had no jurisdiction of the case, and therefore dismissed it for want of jurisdiction, but the district judge certified in the bill of exceptions that it was 'held that the court did not have jurisdiction of the suit, and ordered the same to be dismissed,' and, in the order allowing the writ of error, certified, in effect, that it was allowed 'upon the question of jurisdiction.' So, also, in Shields v. Coleman, 157 U.S. 168, 15 Sup. Ct. 570, where the court below, granting the appeal, said, 'This appeal is granted solely upon the question of jurisdiction,' and made further provisions for determining what part of the record should be certified to this court under the appeal, we held this to be a sufficient certificate of a question of jurisdiction under the act.
In this case, however, the only question of jurisdiction is raised by the demurrer of Sewall to the petition, which is upon two grounds: First, that a proper and final decree had been made, adjudicating all the issues in the cause; and second, that the court had no power or jurisdiction to grant the petitioners relief. This, however, is in substance only a general demurrer to the bill for the want of equity.
In the petition of Sarah Van Wagenen for a rehearing, it is alleged that a final decree was rendered in 1851, fully and finally disposing of the cause, which exhausted all the jurisdiction of the court, and that it was beyond its power and jurisdiction to vacate the survey ordered by such decree by the subsequent proceedings taken in 1885. It is very doubtful whether the question thus raised by her, of the authority to vacate and set aside a previous decree of the court, did not involve a power to exercise a juisdiction already vested, rather than a question of jurisdiction itself, within the meaning of the act of March 3, 1891. Carey v. Railway Co., 150 U.S. 170, 180, 14 Sup. Ct. 63.
In any event, however, we cannot be required to search the record to ascertain whether the petition was dismissed for the want of equity, or for some other reason. Shields v. Coleman, 157 U.S. 168, 177, 15 Sup. Ct. 570. Indeed, it appears to have been the very object of the fifth section of the act of 1891 to have the question of jurisdiction plainly and distinctly certified to us, or at least to have it appear so clearly in the decree of the court below that no other question was involved that no further examination of the record would be necessary.
The appeal is accordingly dismissed.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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