We are of opinion that the case is not within the eleventh section of the Code, and therefore that the appeal must be dismissed. If the order of the supreme court effectually transferred the cause to the United States court, then, undoubtedly, it "prevented a judgment" in the state court. It did not however "determine the action," but sent it merely to another tribunal. Moreover, in the view suggested, it did not affect a "substantial right" *Page 598 within the meaning of the Code. Whatever ground of preference the plaintiff may have for one tribunal over another, the right supposed to be affected must relate to the merits of the controversy, in the court below, and these are, in theory at least, as safe in the federal as in the state courts.
It was claimed, however, on the argument of the motion, that the order transferring the cause was wholly inoperative, on the ground that the case was not within the judiciary act above referred to. The circuit court therefore, it was urged, will acquire no jurisdiction, and hence the action is determined everywhere. To this it may be answered that the United States circuit will either assume jurisdiction of the suit and proceed to judgment, or it will not. If it does, then certainly the action has not yet been determined. If it refuses to do so, then the order complained of will be vacated and the case will proceed in the supreme court. The question of jurisdiction must be decided by the circuit court itself, and however it may decide we cannot see that the suit will not proceed in one court or the other.
Appeal dismissed *Page 599