
    RIVERA v. SUN LIFE ASSURANCE COMPANY.
    San Juan,
    Law,
    No. 999.
    Petition foe Writ of Error.
    District Court — Appeal.
    I. Circuit court of appeals has appellate jurisdiction to review upon writ of error final decisions in all cases than those in which writs are taken direct to the Supreme Court, as to jurisdiction, prize, and constitutional questions.
    
      Writ of Error — Practice.
    2. Tiie theory of a writ of error is that it is issued by the appellate court; and. although in practice it is issued in the lower court in the name of the president and attested by the chief justice, it is the writ of the court of review. It must be accompanied by assignment of errors and appropriate .bond, which cannot be criticized by the court, provided they raise real final questions.
    Writ of Error — Final Decision.
    3. Where it is .doubtful whether a decision is final, this court may nevertheless issue the writ and let the point be determined by a motion to dismiss above.
    Opinion filed July 27, 1917.
    
      Mr. Cayetano Coll y Cuchi for petitioning defendant.
    
      Mr. Willis ¡Sweet for plaintiff.
   Hamilton, Judge,

delivered the following opinion:

It has previously been decided by the court that the judgment entered in this case in the name of the parties who have been substituted for the plaintiff as her representatives does not belong to them. They have, for reasons which seem proper to themselves, released their interest to the defendant; but it» has been held by the court that they could not release the contract interest of the attorneys of the plaintiff, and that accordingly execution must issue on the judgment to the extent of- the one-lialf interest which has been shown to belong to the attorneys in question. Whether this execution should in form be in favor of the plaintiffs or not has not been, discussed. Probably thé form would not be material, in as much as, even if issued, in -the name of the plaintiff, it would be: payable to tbe plaintiff’s attorneys, and apparently there would be no difference afterwards between tbe plaintiffs and tbe attorneys calling for tbe intervention of tbe court. Upon tbis condition of affairs comes tbe application of tbe defendant for a writ of error from tbe order of tbis court dated July 17, declining to deny tbe previous application of tbe defendant tbát execution be not issued.

1. Under tbe law covering tbe subject of review of lower courts, it is provided that appeal lies from courts of equity and tbe analogous bankruptcy cases. Foster, Fed. Pr. 5th ed. § 687; Courtney v. Pradt, 87 C. C. A. 463, 160 Fed. 561; Swift Fertilizer Works v. Okolona Cotton Oil Co. 108 C. C. A. 428, 186 Fed. 158. Tbe circuit court of appeals accordingly bas an appellate jurisdiction to review by writ of error final decisions in tbe district courts in all cases other than those in which writs may be taken direct to tbe Supreme Court. Judicial Code, § 128. By amendment of January, 1915, Porto Rico is included within- tbe first circuit for such purposes. The appeals to tbe Supreme Court are only as to jurisdiction of tbe court, prize and constitutional questions. Judicial Code, § 238. Tbe question at bar, therefore, goes to- tbe circuit court of appeals if it can be reviewed at all.

2. Tbe theory of a writ of error is that it is issued by the appellate court through its clerk. Foster, Fed. .Pr. 5th'ed. § 699. In point of practice tbe writ is issued in tbe lower court itself in tbe name of tbe President, attested in tbe name of tbe chief justice. It is tbe writ of tbe court of review, although it is issued from tbe clerk’s office of the district court to be reviewed. Mussina v. Cavazos, 6 Wall. 355, 18 L. ed. 810. It must be accompanied by an assignment of errors and by bond appropriate to tbe case, before it will be allowed. These requirements have been complied with in the case at bar. The court does not feel called upon to decide the validity of the assignments of error, either in form or substance, provided they seem to raise real, and not moot, questions. The law provides for a writ to review “final decisions;” and this expression of the Judiciary Act of March 3, 1891, has been held to be equivalent to the term “final decree,” or “final judgment,” as used in the earlier statutes. Cassatt v. Mitchell Coal & Coke Co. 10 L.R.A.(N.S.) 99, 81 C. C. A. 80, 150 Fed. 32; Webster Coal & Coke Co. v. Cassatt, 207 U. S. 181, 187, 52 L. ed. 160, 162, 28 Sup. Ct. Rep. 108. A writ of error “lieth when k man is grieved by an error in the foundation, proceeding, judgment or execution. . . . Without a judgment or an award in nature of a judgment no writ of error doth lie.” 2 Co. Litt. 288b. An order striking a case from the docket cannot be reviewed by writ of error, because it is not final, the case being open to reinstatement. Loflin v. Ayres, 90 C. C. A. 603, 164 Fed. 841. The judgment of nonsuit is a final judgment, subject to review. Connecticut F. Ins. Co. v. Manning, 101 C. C. A. 107, 177 Fed. 893. An order setting aside a verdict and granting a new trial is not final and therefore cannot be so reviewed. Clement v. Wilson, 68 C. C. A. 387, 135 Fed. 749. The dismissal of a bill in equity and discharging the receiver disposes of every question in the case, and is therefore an appealable final decree. Viquesney v. Allen, 65 C. C. A. 259, 131 Fed. 21. A decree on a master’s report fixing the amount and priority of claims against an insolvent corporation, and directing distribution of tbe fund, is a final decree, and is appealable. Halsted v. Forest Hill Co. 109 Fed. 820.

3.. In the case at bar there bad been an appeal to tbe Supreme Court and an affirmance of tbe main judgment. This judgment stands as a record of tbe highest nature, and cannot be questioned collaterally in any way. Therefore all argument and all evidence on motions seeking to show that tbe judgment was obtained upon a fraudulent claim cannot be considered. It may well be that there may be some direct proceeding to review or set aside tbe judgment for fraud, unless that question has already been passed upon by a court and jury. This point is not at present before tbe court. Tbe only question was and is as to who tbe judgment belongs to, and therefore to whom it pertains to control tbe issue of execution on tbe judgment. This was not before tbe Supreme Court, and has not been before this court except in certain proceedings looking to enforcement of tbe judgment. Tbe court has decided that tbe judgment must stand, and execution must issue thereon to tbe extent of tbe one half agreed by tbe plaintiff to be paid to her attorneys, and this was the order that was entered July 17. It is obvious that this point has not been determined by this court previously or by tbe Supreme Court. It is a question of fact, and is a decision adverse to tbe defendant to tbe extent of $2,500 and interest. If tbe court is wrong, there should be some method of review. Is it by writ of error ? It has been held that in tbe courts of tbe United States tbe refusal to quash an execution is not a final judgment, and therefore cannot be reviewed on a writ of error. Noojin v. United States, 90 C. C. A. 513, 164 Fed. 692; Boyle v. Zacharie, 6 Pet. 635, 657, 8 L. ed. 527, 535. In Hew York Chancellor Kent held that it was not an uneom-mon thing for a court of law in a difficult case to refuse to relieve a party after judgment and execution on motion only. Brooks v. Hunt, 17 Johns. 484. Chancellor Kent adds that the case should not go up on “such a strange mode of proceeding as that of a writ of error brought upon a motion and affidavit.” State cases depend so much on local legislation as to he often unsatisfactory precedents. It would seem that if an execution is justified by the judgment, which this one certainly is, the remedy for a party who thinks himself aggrieved by a refusal to quash the execution is by mandamus from a superior court. McCargo v. Chapman, 20 How. 557, 15 L. ed. 1022. On the other hand, in the case at bar it is contended that the order of Jidy 17, which was equivalent to a refusal to quash execution for the attorney’s share of the judgment, was a “final decision,” and therefore subject to a writ of error.

The court has strong doubts that this is true under the authorities above cited. The motion refused was, from one point of view, an attack upon the integrity of a final judgment of this court; and it would seem that this must be done, not by motion, but by some more orderly method of procedure. On account of the distance of Porto Rico, however, from the seat of the court of appeals, it would seem better for this court not to decide the question. The point can be as well raised in the circuit court of appeals by motion to dismiss the writ as it ean here, and that course will save expense and delay. For this reason, therefore, the application for writ of error will be granted, but without any decision on the part of the court that this is the proper remedy, and without prejudice to any previous bond or proceedings.

It is so ordered.  