Syllabus.

severance or other equivalent proceeding. It follows that the writ must be dismissed, on the authority of Williams v. Bank of the United States, 11 Wheat. 414; Masterson v. Herndon, 10 Wall. 416; Simpson v. Greeley, 20 Wall. 152; and it is

So ordered.

WOOLF v. HAMILTON et al.

IN ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH.

Decided November 10th, 1882.

Error-Practice-Statutes.

A case not tried in a territorial court by a jury cannot be brought for review by a writ of error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This writ of error is dismissed on the authority of Hecht v. Boughton, 105 U. S. 235. The case was not tried in the court below by a jury. This, under the act of April 7th, 1874, c. 80, 18 Stat. 27, made it necessary to bring the judgment here for review by appeal and not by writ of error.

Dismissed.

CITY OF NEW ORLEANS v. NEW ORLEANS, MOBILE & TEXAS RAILROAD COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA.

Argued November 14th and 15th, 1882.-Decided November 20th, 1882.

The board of liquidation of the city debt of New Orleans, a corporate body created by the legislature of Louisiana, created pending the appeal of this suit, appeared and claimed authority over the subject-matter of the controversy. The court refused to enter judgment-according to the terms of stipulation made with the attorney of the city of New Orleans by author. ity of the city council, without first giving the board opportunity to be heard.

Opinion of the Court.

Motion to dismiss the appeal.

Mr. J. L. Cadwalder and Mr. Bayne in support of the motion.

Mr. H. O. Miller and Mr. Richard T. Merrick against it.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This case was continued at the request of the parties on the 10th of October. The appellee now presents a stipulation for the dismissal of the appeal, signed by the city attorney of New Orleans, pursuant to the terms of a compromise of the matter in dispute made with the city council, and asks to have the appropriate order entered upon that stipulation. The board of liquidation of the city debt of New Orleans comes to resist the entry of any such order, on the gronnd that, during the pendency of the appeal in this court, authority over the subjectmatter of the controversy has been transferred from the city council to that board, and that the compromise which has been effected is not binding. The board also asks permission to prosecute the appeal in the name of the city.

It is conceded that the city council made the compromise which is claimed, and that the appellee is entitled to a dismissal of the appeal if the council had authority to do what it has done and the compromise was fairly made. The dispute as to the authority of the council presents questions too important to be settled summarily on these motions.

It is, therefore, ordered that the cause and pending motions be continued until the next term, and that the appeal be then dismissed, in accordance with the stipulation on file, unless the board of liquidation begin and prosecute, without unnecessary delay, in some court of competent jurisdiction, an appropriate proceeding to set aside the compromise which has been made with the city council.*

*The board of liquidation appeared, and on the 12th of November, 1883, after argument, the decree below was affirmed. See 109 U. S. 221.

Opinion of the Court.

MAYER and Another v. WALSH.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI.

Decided December 18th, 1882.

Practice.

In the absence of a printed record the court will not grant a motion to dismiss when the motion papers disclose equitable reasons why it should not be granted.

Motion to dismiss.

Mr. C. W. Hornor for appellants.

Mr. P. Phillips and Mr. W. Hallett Phillips for appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This is a cross-appeal and the record has not been printed. As the case is here on the original appeal by the present appellee, we are not inclined to grant this motion in the absence of the printed record. It appears from the motion papers that the present appellant pleaded prescription, and we infer that this plea was not sustained. By his other defences he defeated the claim in part. To review the decree so far as it is affected by these defences, the present appellee appealed. If, on that appeal, these defences are overruled, it may be important to the present appellant to insist on his defence of prescription against a claim that will then amount to more than five thousand dollars. Had not the other side appealed, the present appellant could not, because the decree against him is less than five thousand dollars. Under the circumstances, it may be that this appeal was well taken. Without, however, deciding that question, we postpone the further consideration of the motion until the hearing on the merits.

VOL. CVIII-2

Statement of Facts.

CHICAGO & ALTON RAILROAD COMPANY v. WIGGINS FERRY COMPANY.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

Decided January 29th, 1888.

Constitutional Law-Removal of Causes-Practice.

1. When the courts of one State give to the statutes of another State a different construction from that given by the courts of the State in which the laws were enacted, no case arises under the removal act for the transfer of the cause to the federal courts. The remedy, if any, is by writ of error after final judgment.

2. A judgment of a State court set up as an estoppel cannot be corrected in a collateral proceeding in a court of the United States. Until reversed or brought for review in the manner provided by law, it is entitled to the same effect in the courts of the United States as in the courts of the State.

Appeal from an order remanding the cause to the State

court.

This is a suit begun in a State court of Missouri by the Wiggins Ferry Company, an Illinois corporation, against the Chicago & Alton Railroad Company, another Illinois corporation, to recover damages for the breach of a contract by which, as is alleged, the railroad company bound itself not to employ any other means than the ferry company's ferry for the transportation of passengers and freight, coming and going on its railroad, across the Mississippi at St. Louis. The railroad company defends on the ground, among others, that if the agreement actually entered into by the parties contains by construction any such provision as is claimed, it is in violation of the laws of Illinois, and in excess of the corporate powers of the company as an Illinois corporation. To avoid the effect of this defence the ferry company sets up, by way of estoppel, a judgment in another suit in a State court of Missouri, between the same parties, where precisely the same question was raised on the same contract, and in which it was decided that the railroad company did have the corporate authority under the laws of Illinois to make the contract. As soon as the pleadings

Argument for Plaintiff in Error.

in the case developed this issue, the railroad company petitioned for the removal of the suit to the Circuit Court of the United States for the Eastern District of Missouri, the proper district, on the ground that "full faith and credit has not been given to the public acts of the State of Illinois by the Supreme Court of the State of Missouri in the adjudication aforesaid, and that by reason of the facts herein set forth, and of such adjudication, and the pleading thereof as an estoppel, in the manner set forth in the plaintiff's amended petition, this suit is one arising under the Constitution and laws of the United States." The facts set forth in the petition were the charter and laws of Illinois, which governed the powers of the railroad company as an Illinois corporation.

The State court, on the filing of the petition for removal, accompanied by the necessary bond, stopped proceedings, but the circuit court, when the record was entered there, remanded the cause. From an order to that effect this writ of error has been taken, and is now for hearing on the merits under the operation of Rule 32, adopted at the last term, with a view to facilitating the final determination of questions of removal under the act of March 3d, 1875, c. 137, 18 Stat. 470.

66

Mr. C. H. Krum for the plaintiff in error. 1. This motion is not within the rules. To grant the motion would decide the whole legal merits of the case, which the court has said it will not do on such a motion. Hecker v. Fowler, 1 Black, 95. 2. The record presents a case which arises under the Constitution of the United States. This court has held that a case in law or equity consists of the right of one party as well as of the other, and may properly be said to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either. That it is not sufficient to exclude the judicial power of the United States from a particular case, that it involves questions which do not at all depend on the Constitution or laws of the United States; but where à question, to which the judicial power of the Union is extended by the Constitution, forms an