It is next urged that defendant is not entitled to recoup damages (after having accepted the machinery purchased) for the breach of the warranty in question, because the answer, in the language of counsel "does not count upon any breach of contract, nor allege that plaintiff has been damaged, nor pray for damages, nor ask to have damages sustained by it set off against the purchase price." This view was not presented to the trial court, and might, with propriety, now be ignored by us, but, as we have considered it, we deem it is proper to say that we are unable to appreciate the exact meaning or applicability of counsel's proposition. The answer, as already seen, undoubtedly seeks to recoup damages sustained by defendant by reason of alleged breach of the warranty made by plaintiffs concerning the character of the workmanship and material of the boilers in question. This answer was not, in terms, called a "set-off," or "counterclaim," or "recoupment," and perhaps was not technically pleaded as such; but, whatever it might have been styled, it was in fact a statement of such facts as entitled the defendant to diminish the plaintiffs' amount of recovery; and, even if it be conceded that it was inartificially drawn, it was never challenged by any motion to make it more specific or certain. But it was not, in our opinion, obnoxious to any such criticism. The answer, especially under code practice and pleadings, was entirely sufficient to entitle the defendant to show, by way of reduction of plaintiffs' recovery, the diminished value of the boilers in question, occasioned by the defective workmanship or material complained of. Winder v. Caldwell, 14 How. 441, 14 L. Ed. 487; Withers v. Greene, 9 How. 219, 228, 13 L. Ed. 109; Railroad Co. v. Smith, 21 Wall. 255, 22 L. Ed. 513; Perley v. Balch, 23 Pick. 283, 286, 34 Am. Dec. 56; Taylor v. Griswold, 32 Ga. 569; McAlpin v. Lee, 12 Conn. 129, 30 Am. Dec. 609; Avery v. Brown, 31 Conn. 398. The case of Philip Schneider Brewing Co. v. American Ice-Mach. Co., 23 C. C. A. 89, 77 Fed. 139, chiefly relied upon by counsel for defendants in error, gives no countenance to their contention. In that case the defendants stated with great particularity the parts of the machine which it claimed to be defective, and, although the answer also contained a general denial, it was held that the defendant could make proof only of the specific defects mentioned. The court, speaking by Caldwell, J., in that case said:

"It may be assumed that this clause of the answer [referring to the general denial], standing alone, was a good general denial, and that, if the defendant had said nothing more in its answer, it would have raised an issue as to the sufficiency of every part of the plant. But the defendant was not content to rest on this general denial. It afterwards chose to make its general denial specific, and to point out with great particularity the parts of the ice machine which it claimed were defective."

Such being the case, the court held that the defendant was limited to proof of the particular defects pointed out, and that the general denial gave it no greater latitude. That case, instead of being at all inconsistent with the conclusion reached in this case, is in perfect correspondence with it.

The relevancy and competency of certain questions put to witnesses for the defendant, which were made the subjects of assign

ments of error, will readily be determined by the principles already announced, and need no further consideration at our hands.

Inasmuch as the case must be tried again, we deem it proper to express our opinion on the first error assigned, namely, that the court erred in not permitting the defendant to open and close the case. It is well settled in the courts of the United States that the determination of the right to open and close a case rests largely in the sound discretion of the trial court. Lancaster v. Collins, 115 U. S. 222, 6 Sup. Ct. 33, 29 L. Ed. 373; Hall v. Weare, 92 U. S. 728, 23 L. Ed. 500; Day v. Woodworth, 13 How. 363, 14 L. Ed. 181. The pleadings disclose that the admission of the sale and delivery of the engines and boilers in question was rather argumentative in its character. The answer contains at least a denial that the engines and boilers delivered were the ones which were ordered. From these circumstances it appears that there was no abuse of discretion by the trial court in according to the plaintiffs the right to open and close the case.

For the reasons herein before stated, the judgment of the trial court must be reversed, and the cause remanded for a new trial.

(109 Fed. 497.)

EXCELSIOR WOODEN-PIPE CO. v. PACIFIC BRIDGE CO. et al.

(Circuit Court of Appeals, Ninth Circuit. May 6, 1901.)

No. 668.

CIRCUIT COURt of Appeals—JURISDICTION-QUESTION OF Jurisdiction of CIRCUIT COURT.

Where a circuit court dismisses a case on the ground that it has no jurisdiction, leaving pending motions undetermined, the only issue reviewable is that of jurisdiction, which must be taken to the supreme court, and an appeal will not lie to the circuit court of appeals.1

Appeal from the Circuit Court of the United States for the Northern Division of the District of Washington.

On Motion to Dismiss Appeal.

Wm. F. Booth, N. A. Acker, W. W. Wilshire, and A. H. Kenaga, for appellant.

A. R. Titlow, W. H. Bogle, and Chas. Richardson, for appellees. Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge. The appeal is taken from an order dismissing the bill of complainant in a suit brought to enjoin infringe. ment of certain letters patent. After the issues were made, and the time within which to take proofs, under equity rule 69, had expired, the defendants in the suit filed a motion for extension of such time. Upon calling and hearing this motion, the court asked for argument on the question of its jurisdiction of the controversy.

1 See note at end of case.

The complainant thereupon filed a motion for a decree on the pleadings and papers on file in the cause. The court, without deciding either motion, dismissed the suit for want of jurisdiction, upon the ground that, in the opinion of the court, the cause was one arising on contract, and not under the patent laws of the United States, and was not a case in which there was diversity of citizenship of the parties. The complainant appealed from the decree of dismissal, assigning that the court erred in dismissing the cause for want of jurisdiction, and in not denying the appellees' motion for an extension of their time to take testimony, and in not allowing the complainant's motion for a decree on the pleadings and papers on file. The appellees now move to dismiss the appeal upon the ground that the only question involved on the appeal is the question of the jurisdiction of the circuit court to entertain the suit.

The motion to dismiss must be allowed. In construing that portion of the act of March 3, 1891 (26 Stat. 826), establishing the cir cuit courts of appeals, which provided that appeals and writs of error may be taken from the existing circuit courts directly to the supreme court in any case in which the jurisdiction of the court is in issue, the supreme court in McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, 35 L. Ed. 893, held that, "when that judgment is rendered, the party against whom it is rendered must elect whether he will take his writ of error or appeal to the supreme court upon the question of jurisdiction alone, or to the circuit court of appeals upon the whole case." In order that the circuit court of appeals may entertain the appeal, there must be in the case something more than the question of the jurisdiction. In U. S. v. Jahn, 155 U. S. 114, 15 Sup. Ct. 39, 39 L. Ed. 87, the court, further construing the act, announced these general conclusions:

"(1) If the jurisdiction of the circuit 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. (2) If the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in favor of the defendant on the merits, the plaintiff, who has maintained the jurisdiction, must appeal to the circuit court of appeals, where, if the question of jurisdiction arises, the circuit court of appeals may certify it. (3) If the question of jurisdiction is in issue, and the jurisdiction sustained, and judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified, and come directly to this court, or to carry the whole case to the circuit court of appeals, and the question of jurisdiction can be certified by that court. (4) If, in the case last supposed, the plaintiff has ground of complaint in respect of the judgment he has recovered, he may also carry the case to the circuit court of appeals on the merits, and this he may do by way of cross appeal or writ of error, if the defendant has taken the case there, or independently, if the defendant has carried the case to this court on the question of jurisdiction alone, and in this instance the circuit court of appeals will suspend a decision upon the merits until the question of jurisdiction has been determined. (5) The same observations are applicable where a plaintiff objects to the jurisdiction, and is, or both parties are, dissatisfied with the judgment on the merits."

The present case comes within the class of cases referred to in the first clause of the language above quoted. It is a case in which the question of the jurisdiction of the circuit court only is in issue. That question was decided in favor of the defendants, and the case

was thereby disposed of. Although there were other questions pending before the court at the time of ruling upon the question of jurisdiction and dismissing the suit, those questions have not been determined, and are not involved in the present appeal. They are questions upon which the judgment of the circuit court has not been taken. It cannot be assigned as error that the circuit court failed to deny the appellees' motion for an extension of time within which. to take testimony, or that it failed to allow the appellant's motion for a decree upon the pleadings. There has been no decision of any question in the case except the question of jurisdiction. The act creating the circuit courts of appeals does not give them jurisdiction to review a judgment of a circuit court which sustains objection to its jurisdiction, and on that ground dismisses the suit. The question which is before us is not affected by the fact that the circuit court, at the time of ordering such dismissal, had before it other motions and questions which, for the reason that it denied its own jurisdiction, it never decided. Gates v. Bucki, 4 C. C. A. 116, 124, 53 Fed. 961; Manufacturing Co. v. Barber, 9 C. C. A. 79, 60 Fed. 465; Cabot v. McMaster, 13 C. C. A. 39, 65 Fed. 533; Beck & Pauli Lith. Co. v. Wacker & Birk B. & M. Co., 22 C. C. A. 11, 76 Fed. 10; Evans-Snider-Buell Co. v. McCaskill, 41 C. C. A. 577, 101 Fed. 658; Dudley v. Board, 43 C. C. A. 184, 103 Fed. 209; Wetmore v. Rymer, 169 U. S. 115, 18 Sup. Ct. 293, 42 L. Ed. 682. The appeal is dismissed.

NOTE.

Review of Jurisdiction of Circuit Courts.

1. Review by Supreme Court.

[a] (U. S. Sup., Colo., 1898) The question whether a district court acquired jurisdiction over the defendant by valid service is one of jurisdiction, and a judgment in which it is involved is reviewable by writ of error directly from the supreme court.-Shepard v. Adams, 168 U. S. 618, 18 Sup. Ct. 214, 42 L. Ed. 602.

[b] (U. S. Sup., Fla., 1896) The fact that, in an equity proceeding in the federal circuit court, a demurrer to the petition on the ground that a proper and final decree had been made, adjudicating all of the issues in the cause, and that the court had no power to grant the petitioners relief, was sustained, does not so clearly show that the jurisdiction of the circuit court was an issue as to dispense with the necessity of a certificate to that effect to the federal supreme court, as required by Act March 3, 1891, § 5.-Van Wagenen v. Sewall, 160 U. S. 369. 16 Sup. Ct. 370, 40 L. Ed. 4C0.

[c] (U. S. Sup., Ind., 1895) Where the record shows that the only matter tried and decided in the circuit court was a demurrer to the plea to the jurisdiction, and the petition upon which the writ of error was allowed asked only for the review of the judgment of the circuit court that it had no jurisdiction of the action, the question of jurisdiction is sufficiently certified for review by the supreme court, as required by Act March 3, 1891, c. 517, § 5.-Improvement Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 L. Ed. 401.

[d] (U. S. Sup., Md., 1896) Where the allowance of the writ of error is general, and not expressly limited to the question of jurisdiction of the court, and the petition for the writ, after mentioning all the proceedings in detail, asks for a review of all the "rulings, judgments, and orders" of the court "upon the question of jurisdiction raised in said exceptions, pleas, and demurrers, and the other papers on file in this cause," without defining or indicating any specific question of jurisdiction, there is no such full, clear, and separate statement of a definite question of jurisdiction as will supply

the want of a formal certificate under Act March 3, 1891, c. 517, § 5,-Chappell v. U. S., 160 U. S. 499, 16 Sup. Ct. 397, 40 L. Ed. 510.

[e] (U. S. Sup., Mass., 1896) Act March 3, 1891, § 5, providing for the certification to the supreme court of the question of jurisdiction of the circuit court, when that is in issue, does not apply when the only question is whether the case was properly brought in equity or at law.-Smith v. McKay, 161 U. S. 355, 16 Sup. Ct. 490, 40 L. Ed. 731.

[f] (U. S. Sup., Mass., 1896) The record disclosed that defendants appealed on the express ground that the circuit court "erred in taking jurisdiction, and in not distaissing the bill for want of jurisdiction, and prayed that their appeal be allowed, and the question of jurisdiction be certified to the supreme court, and that said appeal was allowed." The certificate further stated that there was sent a true copy of so much of the record as was necessary to determine the question of jurisdiction, and, "as part of the record so certified," was "the opinion of the court below, in accordance with which the motion to dismiss for want of jurisdiction was denied." Hela, that it appeared that the appeal was granted solely on the question of jurisdiction, and that hence an express certificate to that effect was not necessary to authorize a review.-Smith v. McKay, 161 U. S. 355, 16 Sup. Ct. 490, 40 L. Ed. 731.

[g] (U. S. Sup.) The supreme court cannot review a decision of the circuit court on a jurisdictional question, in the absence of a certificate by that court of the question in issue.-(Fla. 1895) Colvin v. City of Jacksonville, 157 U. S. 368, 15 Sup. Ct. 634, 39 L. Ed. 736; (Kan. 1896) Davis v. Geissler, 162 U. S. 290, 16 Sup. Ct. 796, 40 L. Ed. 972; (Neb. 1894) Maynard v. Hecht, 151 U. S. 324, 14 Sup. Ct. 353, 38 L. Ed. 179; (Nev.) Moran v. Hagerman, 151 U. S. 329, 14 Sup. Ct. 354, 38 L. Ed. 181; (N. Y. 1895) Ansbro v. U. S., 159 U. S. 695, 16 Sup. Ct. 187, 40 L. Ed. 310.

[h] (U. S. Sup., N. Y.) Under the judiciary act of March 3, 1891, providing that, in cases where the jurisdiction of the court below is in issue, that question, and that alone, shall be certified to the supreme court of the United States for decision, the inquiry is limited to the question thus certified.— (1893) Passavant v. U. S., 148 U. S. 214, 13 Sup. Ct. 572, 37 L. Ed. 426; (1895) The Bayonne, 159 U. S. 687, 16 Sup. Ct. 185, 40 L. Ed. 305.

[i] (U. S.) Under Act March 3, 1891, establishing the circuit court of appeals, where the jurisdiction of the circuit court is in issue, and is decided in favor of defendant, plaintiff should have the question certified and appealed directly to the supreme court.-(Sup., N. Y., 1894) U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87; (C. C. A., Mo., 1900) Evans-SniderBuel Co. v. McCaskill, 101 Fed. 658, 41 C. C. A. 577.

[j] (U. S.) Where the jurisdiction of the circuit court is in issue, and the jurisdiction is sustained, and there is a judgment for plaintiff on the merits, defendant may elect either to have the question of jurisdiction certified directly to the supreme court, or to carry the whole case to the circuit court of appeals, which may certify such question.-(Sup., N. Y., 1894) U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87; (C. C. A., Mo., 1900) EvansSnider-Buel Co. v. McCaskill, 101 Fed. 658, 41 C. C. A. 577.

[k] (U.S.) Where, in such case, plaintiff also has grounds of complaint in respect to the judgment in his favor, he may carry the case to the circuit court of appeals on the merits by cross appeal or writ of error, if defendant has taken the case there, or independently, if defendant has taken the case to the supreme court on the question of jurisdiction only, in which instance the circuit court of appeals will suspend a decision on the merits until the question of jurisdiction is determined.-(Sup., N. Y., 1894) U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87; (C. C. A., Mo., 1900) EvansSnider-Buel Co. v. McCaskill, 101 Fed. 658, 41 C. C. A. 577.

[1] (U.S.) The same rules apply where plaintiff objects to the jurisdiction of the circuit court, and is, or both parties are, dissatisfied with the judgment on the merits.--(Sup., N. Y., 1894) U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87; (C. C. A., Mo., 1900) Evans-Snider-Buel Co. v. McCaskill, 101 Fed. 658, 41 C. C. A. 577.

[m] (U. S. Sup., N. Y., 1895) A certificate made by the district judge, at a term subsequent to the entry of final decree, specifying questions of juris