KIRWAN
v.
MURPHY.
No. 550.
Supreme Court of United States.
Submitted March 28, 1898. Decided April 25, 1898. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.*208 Mr. Henry N. Copp and Mr. S.D. Luckett for the motion.
Mr. Solicitor General and Mr. W.J. Hughes opposing.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
By the sixth section of the act of March 3, 1891, c. 517, 26 Stat. 826, 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 *209 the case by this court, where the matter in controversy exceeds one thousand dollars exclusive of costs.
But this applies only to final orders, judgments or decrees. Young v. Grundy, 6 Cranch, 51; Keystone Iron Company v. Martin, 132 U.S. 91; McLish v. Roff, 141 U.S. 661; American Construction Company v. Jacksonville Railway Company, 148 U.S. 372, 378.
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. Louisville & Nashville Railroad v. Behlmer, 169 U.S. 644.
In Smith v. Vulcan Iron Works, 165 U.S. 518, 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. Here, however, the Court of Appeals did not finally determine the case by its judgment, and whether 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, we think, that the injunction was improvidently issued, and the order appealed from is therefore affirmed." 49 U.S. App. 658.
Moreover, by section six, the Circuit Courts of Appeals are empowered to review final decisions of the District and Circuit Courts, except where cases are carried, under section five, directly to this court, but, by the seventh section, as amended by the act of February 19, 1895, 28 Stat. 666, c. 96, jurisdiction *210 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 Railroad Company, 168 U.S. 583.
Appeal dismissed.