[292 U.S. 25, 26] Messrs. Archibald B. Lovett and Robert M. Hitch, both of Savannah, Ga ., for petitioner.
Mr. Thomas W. Hardwick, of Augusta, Ga., for respondent. [292 U.S. 25, 27]
Mr. Justice BRANDEIS delivered the opinion of the Court.
Ruff brought in a state court of Georgia this suit against Gay, as receiver of the Savannah & Atlanta Railway, appointed by the federal court for southern Georgia sitting in equity. The cause of action alleged is the homicide of plaintiff's minor son as a result of the negligent operation of a train by employees of the receiver. Before trial in the state court, the receiver duly filed in the appropriate federal court a petition for removal and certiorari, under the amendment made by Act of August 23, 1916, c. 399, 39 Stat. 532 to Judicial Code 33 (28 USCA 76), which inserted therein the clause: 'or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer.' 1
The federal court denied a motion to remand, (D.C.) 3 F.Supp. 264; and thereafter dismissed the suit, entering a [292 U.S. 25, 28] final judgment for want of prosecution. The Circuit Court of Appeals for the Fifth Circuit reversed that judgment, with direction to set aside the dismissal and remand the cause to the state court. 67 F.(2d) 684. Because of conflict of decisions,2 certiorari was granted to determine whether the amendment to Judicial Code 33 authorizes a receiver of a railroad appointed by a federal court sitting in equity to remove from a state court an action brought against him as receiver for damages resulting from the negligent operation of a train by his employees.
First. The respondent raises the preliminary question whether this Court has jurisdiction to review the action of the Circuit Court of Appeals. The contention is that this Court lacks jurisdiction to review a judgment directing the remand to a state court, because Judicial Code 28 ( 28 USCA 71), declares: 'Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed.' 3 [292 U.S. 25, 29] This provision, enacted in 1887, was broadly construed by this Court as prohibiting review of an order of remand, directly or indirectly, by any proceeding. The prohibition was applied to appeals from, and writs of error to, the federal circuit (and later district) court; to writs of error to a state court after final judgment there; and to mandamus in this Court. 4 In German National Bank v. Speckert, 181 U.S. 405, 409 , 21 S.Ct. 688, where the trial court had refused to remand the case to the state court and the Circuit Court of Appeals had reversed that judgment and ordered a remand, this Court held that it was without jurisdiction to review the latter's action. While adverting in support of its conclusion to the broad construction which had been given to the above- quoted prohibition, the Court ruled there that the fact that an order of remand is not a final judgment precluded its review by writ of error. 5 [292 U.S. 25, 30] But by reason of the extensive power to issue writs of certiorari which the Circuit Court of Appeals Act of 18916 thereafter gave to this Court, it may now review the action to the circuit court of appeals in directing the remand of a cause to the state court. That Act provided that in any case in which the judgment of the circuit court of appeals is made final, 'it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.' In Forsyth v. Hammond, 166 U.S. 506, 512 , 17 S.Ct. 665, it was held that the power given was unaffected by the condition of the case as it exists in the circuit court of appeals; that the power may be exercised before, as well as after, any decision by that court and irrespective of any ruling or determination therein; and that the sole essential of this Court's jurisdiction to review is that there be a case pending in the circuit court of appeals. The jurisdiction to review interlocutory orders was exercised in American Construction Co. v. Jacksonville, 148 U.S. 372 , 13 S.Ct. 758; Denver v. New York Trust Co., 229 U.S. 123, 133 , 33 S.Ct. 657; Spiller v. Atchison, etc., R. Co., 253 U.S. 117, 121 , 40 S.Ct. 466; and Du Pont Powder Co. v. Masland, 244 U.S. 100 , 37 S.Ct. 575. And in The Three Friends, 166 U.S. 1, 49 , 17 S.Ct. 495, 497, it was held that this Court could review a case pending in, and not yet decided by, the circuit court of appeals, with the same power and authority as if it had been carried here by appeal or writ of error 'that is, as if it had been brought directly from the district or the circuit court.' In Chicago, Burlington & Quincy R.R. v. Willard, 220 U.S. 413 , 31 S.Ct. 460, decided under the [292 U.S. 25, 31] act of 1891, this Court, without questioning its power, reviewed the judgment of the circuit court of appeals reversing a judgment of dismissal and ordering a remand. Nor has the existence of the power been questioned by the Court since.