KIRWAN v. MURPHY 170 U.S. 205 (1898)

The answer alleged that about 1,200 acres of the township were never sold, disposed of, or patented, and were still unsurveyed land belonging to the government, and lying between the shore of Cedar Island Lake and certain enumerated government lots, a part of which lots had been patented and conveyed to complainants; that, by the plat made from the deputy' field notes, all of said unsurveyed land is indicated as being a part of Cedar Island Lake. In 1893 an application of certain settlers upon this intervening tract for a survey thereof, so as to enable them to enter the lands as homesteads, was made, and the secretary of the [170 U.S. 205, 208]   interior, after many hearings, complainants being represented, adjudged the former survey fraudulent, and in 1896 a resurvey of the tract was ordered; in accordance with which defendant Kirwan, as surveyor general of the United States, entered into a contract with Crosswell, a deputy surveyor, on December 10, 1896, to survey and subdivide the lands.

On January 22, 1897, complainants filed a replication.

The circuit court, on April 3, 1897, granted complainants' prayer for a temporary injunction, and an injunction was ordered to issue, on bond being filed, restraining defendants 'during the pendency of the above- entitled action or until the further order of this court from entering into any contract or perfecting a contract partially entered into for the survey of the lands hereinbefore described, or any part thereof, or from surveying the same or causing the same to be surveyed.' From this order defendants appealed to the circuit court of appeals for the Eighth circuit, and, after argument, that court ordered, adjudged, and decreed 'that the order and decree of the said circuit court awarding a temporary injunction in this cause be, and the same is hereby, affirmed, without costs to either party in this court, September 27, 1897.'

From this decree appellants in that court, defendants below, prayed and were allowed an appeal to this court, which, having been docketed, appellees now move to dismiss.

Sol. Gen. Richards and W. J. Hughes, for appellants.

S. D. Luckett, for appellees.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

By the sixth section of the act of March 3, 1891 (26 Stat. 826, c. 517), the judgments or decrees of the circuit courts of appeals are made final in that court in the classes of cases therein enumerated, of which the present is not one; and it is provided that, in all cases not made final, there shall be of right, within one year, an appeal or writ of error or review of [170 U.S. 205, 209]   the case by this court, where the matter in controversy exceeds $1,000 exclusive of costs.

But this applies only to final orders, judgments, or decrees. Young v. Grundy, 6 Cranch, 51; Iron Co. v. Martin, 132 U.S. 91 , 10 Sup. Ct. 32; McLish v. Roff, 141 U.S. 661 , 12 Sup. Ct. 118; American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U.S. 372, 378 , 13 S. Sup. Ct. 758.

The order sought to be reviewed was simply an interlocutory order of the circuit court for the issue of a temporary injunction, which order was affirmed by the circuit court of appeals without direction. If we should take jurisdiction, it is this order we should revise in also reviewing that of the circuit court of appeals, and our mandate would go directly to the circuit court. Railway Co. v. Behlmer, 169 U.S. 644 , 18 Sup. Ct. 502.

In Smith v. Iron Works, 165 U.S. 518 , 17 Sup. Ct. 407, it was held that the circuit courts of appeals, on an appeal from an interlocutory order or decree of the circuit courts granting an injunction and ordering an accounting in a patent suit, might consider and decide the case on its merits, and thereupon render or direct a final decree dismissing the bill; and this course might be pursued in other cases. Mills v. Green, 159 U.S. 651 , 16 Sup. Ct. 132. Here, however, the court of appeals did not finally determine the case by its judgment, and whethe the temporary injunction should be made permanent or not was left to the circuit court to decide when the final decree was entered.

And we may add that, in concluding its opinion, the circuit court of appeals said: 'In view of these considerations, we are not satisfied that an error was committed in awarding a temporary injunction. It cannot be said, w think, that the injunction was improvidently issued, and the order appealed from is therefore affirmed.' 49 U. S. App. 658, 28 C. C. A. 348, and 83 Fed. 275.

Moreover, by section 6, the circuit courts of appeals are empowered to review final decisions of the district and circuit courts, except where cases are carried, under section 5, directly to this court, but, by the seventh section, as amended by the act of February 19, 1895 (28 Stat. 666, c. 96), jurisdic- [170 U.S. 205, 210]   tion is given to the courts of appeals from appeals from interlocutory orders in injunction proceedings; and it was under that section that the appeal was taken to the court of appeals in this case.

But there is no provision in the act of March 3, 1891, or any other act, authorizing an appeal to this court from interlocutory orders or decrees, and whether certiorari would lie is a question that does not arise. In re Tampa Suburban R. Co., 168 U.S. 583 , 18 Sup. Ct. 177.

Appeal dismissed.