The opinion
On ^Petition for Rehearing.
(Dec. 21, 1903.)
PER CURIAM.
An opinion in this case having been filed affirming the judgment below, the appellants now bring before us a petition for rehearing, based upon the ground of want of jurisdiction in this court to hear the appeal.
F. M. Wirgman, the appellant, was a defendant in the superior court of North Carolina to a suit brought by Persons and another, receivers, appellees in this case. Upon the motion of Wirgman, and his petition and bond, the case was removed into the Circuit Court of the .United States for the Eastern District of North Carolina. Other parties, defendants to the suit, who had not been served with process in the state court, came into the federal court and submitted themselves to its jurisdiction. The cause, being at issue in that court, was referred to a master, testimony was taken and reported to the court, and the cause was heard upon the full hearing. The defendant Wirgman, after the testimony was taken, entered a motion to remand the cause, which was refused. Considering the whole case, the Circuit Court of the United States entered a decree in favor- of Persons and another, receivers. Thereupon the defendants filed their petition praying an appeal to this court from the decree, accompanying it with assignments of error, the majority of which related to the jurisdiction of the court, but one, at least, the seventh assignment of error, going to the merits of the case in these words:
*455 “In adjudging that the plaintiffs should recover a judgment for $50,000 upon a note in a court of equity.”
The petition for appeal having been allowed, and the appeal perfected, the case came into this court and was fully argued. Before the argument was entered into the appellants stipulated, as a condition for the nonappearance of the testimony in the record, that they would confine their argument to the jurisdiction of the court below. Nothing was said in their briefs here, nor in the oral argument before the court, challenging in any way the jurisdiction of this court to hear their appeal. On the contrary, the judgment and decision of this court was earnestly invoked by both sides. It thus appears that the whole case came into this court, and that it had taken jurisdiction of the whole case. That being so, it is not competent for counsel by their voluntary action to attempt to limit the jurisdiction of the court. When the case was decided in the court below, the appellant had his i option to take the case to the Supreme Court of the United States on the question of jurisdiction alone, or he could have done as he has done —-take the whole case to this court. U. S. v. Jahn, 155 U. S. 110 , 15 Sup. Ct. 39, 39 L. Ed. 87 ; McLish v. Roff, 141 U. S. 661 , 12 Sup. Ct. 118, 35 L. Ed. 893 ; Robinson v. Caldwell, 165 U. S. 359 , 17 Sup. Ct. 343, 41 L. Ed. 745 .
. The language of Fuller, Chief Justice, in American, &c., Co. v. New Orleans, 181 U. S. 282 , 21 Sup. Ct. 646, 45 L. Ed. 859 , seems to us conclusive of this case. The Chief Justice, commenting on Carter v. Roberts, 177 U. S. 496 , 20 Sup. Ct. 713, 44 L. Ed. 861 , and quoting language respecting the class of questions, or cases, to be carried to the Supreme Court, goes on and says:
“Undoubtedly, where the jurisdiction of the Circuit Court depends solely on diverse citizenship, and it turns out that the case involves the construction or application of the Constitution of the United States, or the constitutionality of a law of the United States or the validity or construction of a treaty is drawn in question, or the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States, the Circuit Court of Appeals may certify the constitutional or treaty question up, and proceed as thereupon advised, or may decide the whole case; but language should not have been used susceptible of the meaning that, in cases where the jurisdiction below is invoked on the ground of diverse citizenship, the Circuit Court of Appeals might decline to take jurisdiction, or, in other words, might dismiss the appeal or writ of error for want of jurisdiction. The mere fact that in such a case one or more of the constitutional questions have so arisen that a direct resort to this court might be had does not deprive the Circuit Court of Appeals of jurisdiction, or justify it in declining to exercise it.”
In Reliable, etc., Co. v. Stahl, 105 Fed. 663 , 44 C. C. A. 657 , a case carried to the Circuit Court of Appeals on bill of exceptions, one of which went to the jurisdiction of the court below and others to the merits, when the case got up into the Circuit Court of Appeals, it was found that for lack of a proper appeal, or for noncompliance with the rules, the exceptions to the merits could not be heard. It was held that this did not deprive the Circuit Court of Appeals of jurisdiction to hear the case.
Our conclusion is that, the appellants having elected to appeal the whole case to this court and the whole case having come into this court *456 for adjudication, we had -the choice either to certify the question of jurisdiction to the Supreme Court, or ourselves to decide the question. “Of course, the power to certify assumes the power to decide.” U. S. v. Jahn, supra.
The petition for rehearing is denied.