Schlosser v. Hemphill/Opinion of the Court

by Melville Fuller

United States Supreme Court

198 U.S. 173

Schlosser  v.  Hemphill

 Argued: March 13, 14, 1905. --- Decided: May 8, 1905

By its judgment the supreme court of Iowa reversed the decree of the trial court, and remanded the cause 'for further proceedings in harmony with the opinion of this court.'

We have heretofore held that a judgment couched in such terms is not final in such a sense as to sustain a writ of error from this court. Haseltine v. Central Nat. Bank, 183 U.S. 130, 46 L. ed. 117, 22 Sup. Ct. Rep. 49. It was there ruled that the face of the judgment is the test of its finality, and that this court cannot be called on to inquire whether, when a cause is sent back, the defeated party might or might not make a better case.

It is true that in Iowa the supreme court hears equity cases on appeal de novo, and the successful party is entitled to a decree in that court, if he moves for it (First Nat. Bank v. Baker, 60 Iowa, 132, 14 N. W. 125), but in the present case no such decree was applied for or rendered. Nor did the supreme court direct the court below to dismiss plaintiff's petition, or in terms direct the specific decree to be entered.

And it has been repeatedly held by that court that when a case triable de novo is remanded for judgment in the court below, the parties may be permitted to introduce material evidence discovered since the original trial, and may amend the pleadings for the purpose of setting up matters materially affecting the merits, subsequently occurring. Sanxey v. Iowa City Glass Co. 68 Iowa, 542, 27 N. W. 747; Adams County v. Burlington & M. R. Co. 44 Iowa, 335; Shorthill v. Ferguson, 47 Iowa, 284; Jones v. Clark, 31 Iowa, 497. In the latter case, the court below, the district court, refused to permit amendments, holding, 'as a matter of law, that when a chancery case has been appealed to the supreme court, and has been there heard upon its merits, and is remanded to the district court, with instructions as set forth in the procedendo in this cause, the district court has no power to grant leave to amend.' But the supreme court reversed the district court, and held that that court might, 'at any time, in furtherance of justice, and on such terms as may be proper, permit a party to amend any pleadings or proceedings. Rev. § 2977.'

Doubtless the conclusions arrived at by the state supreme court, and expressed in its opinion, furnish the grounds on which the court below must proceed when the case goes to a decree there, if no change in pleadings or proof takes place, but we cannot say what action might nevertheless be taken, and as no decree was entered in the supreme court, and no specific instuction was given to the court below, we think the writ of error cannot be maintained. Assuming, without deciding, that a Federal question was so raised as otherwise to have justified the exercise of our jurisdiction, we can but repeat what we said in Haseltine's Case: 'The plaintiffs in the case under consideration could have secured an immediate review by this court if the court, as a part of its judgment of reversal, had ordered the circuit court to dismiss their petition; when, under Mower v. Fletcher, 114 U.S. 127, 29 L. ed. 117, 5 Sup. Ct. Rep. 799, they might have sued out a writ of error at once.'

Writ of error dismissed.

Notes