90 U.S. 507
23 L.Ed. 103
23 Wall. 507
RAILROAD COMPANY
v.
WISWALL.
October Term, 1874
ON motion to dismiss a writ of error to the Circuit Court for the Southern District of Illinois. The case was this:
Wiswall, a citizen of Illinois, sued, in one of the inferior State courts of the State just named, the Chicago and Alton Railroad Company. The company conceiving that the case was properly cognizable in the Circuit Court of the United States for that district—the Southern District of Illinois—got an order from that court, the court below, commanding the State court to send the record to it. This the State court did. However, upon looking further into the matter, the Circuit Court was satisfied that it had no jurisdiction, and on motion of the plaintiff remanded the case to the State court. To that remand the railroad company took a writ of error from this court, and this writ it was which Wiswall now moved to dismiss; the ground of the motion being that the remand was not a 'final' judgment or decree, and that the proper proceeding of the company was a motion for mandamus on the court below* to act, and not by writ of error to review what was done.
Mr. E. C. Brearly, in support of the motion; Mr. P. Phillips, contra.
The CHIEF JUSTICE delivered the opinion of the court.
The writ of error is dismissed upon the authority of Insurance Company v. Comstock.** The order of the Circuit Court remanding the cause to the State court is not a 'final judgment' in the action, but a refusal to hear and decide. The remedy in such a case is by mandamus to compel action, and not by writ of error to review what has been done.***