was introduced to supplement the existing jurisdiction of the courts and to afford relief in extraordinary cases where the law presents no adequate remedy. High on Extraordinary Legal Remedies, 3d ed., § 15. But where, without any right, a court of the United States has wrested from a state court the control of a suit pending in it an appeal or writ of error, at the end of long proceedings, which must go for naught, is not an adequate remedy. to which In Virginia v. Rives, supra, the State, after the cause had been removed to the Circuit Court, filed its petition in this court for mandamus, without having made a motion to remand in the Circuit Court, but in the opinion nothing turned on the absence of a motion to remand, and the remedy by mandamus was held to exist "when the case is outside of the exercise of (judicial discretion), and outside the jurisdiction of the Court the writ is addressed. One of its peculiar and more common uses is to restrain inferior courts and to keep them within their lawful bounds," p. 323. Ex parte Bradley is then referred to and its discussion approved. Then followed Ex parte Hoard, 105 U. S. 578, where it is held that if the Circuit Court had denied a motion to remand to the state court the party aggrieved must resort to his writ of error, and that mandamus would be denied, without determining whether the case was properly removed or not. In the three following cases, however, Virginia v. Paul, Kentucky v. Powers, and Ex parte Wisner, supra, the Circuit Court had denied motions to remand (the denial of the motion in Kentucky v. Powers, appearing in the judgment of the court below, 139 Fed. Rep. 452) before the petition for mandamus was filed. Nevertheless, the writ of mandamus was issued upon the ground that it was plain as matter of law from the record itself that the Circuit Court was without jurisdiction. This must now be regarded as the settled law. The respondent, however, insists that mandamus will not lie to control the judgment or judicial discretion of the court to which the writ is proposed to be directed. This is true where the judgment or judicial discretion is within the limits of jurisdiction, but not otherwise. Wherever the record, including the petition för removal, shows that there are questions of fact upon whose determination the right of removal depends and upon which it is the duty of the Circuit Court to pass judicially, then there is jurisdiction to decide those questions. Their decision is the exercise of judicial discretion, and if that discretion is erroneously exercised it can be corrected only by a writ of error or appeal. In these cases writs of mandamus must not be permitted to usurp the functions of writs of error or appeals or take their place where they offer an adequate remedy to the aggrieved party. It is only in cases where the record makes it clear, as matter of law, that the Circuit Court was without jurisdiction to take any action whatever that the writ of mandamus lies. This distinction has been acted on many times by this court, and it is enough to refer to two very recent cases. Thus where the removability of a case turned upon the question whether there was a separable controversy, to the trial of which certain of the defendants were not indispensable or necessary parties, it was held that the Circuit Court had jurisdiction to determine the question of separability; that its decision in that respect was the exercise of judicial discretion and could not be controlled by a writ of mandamus. In re James Pollitz, 206 U. S. 323. The same point was decided in Ex parte Nebraska, 209 U. S. 436. In each of these cases a distinction was made between it and a case where on the face of the record absolutely no jurisdiction has attached, and the right to a writ of mandamus in the latter case was affirmed. As we have shown, the want of jurisdiction of the Circuit Court appears clearly on the record in the case at bar, and does not, as in In re Pollitz and Ex parte Nebraska, depend upon findings of fact which the Circuit Court had jurisdiction to make. We think, therefore, it is clear that the writ of mandamus ought to issue. A subordinate question must receive some attention. It is said that the petitioner in this case appeared generally in the Circuit Court after the removal of the case, and thereby waived his right to object to the jurisdiction, and In re Moore, 209 U. S. 490, is cited in support of the position. But that case simply held that where there was a diversity of citizenship, which gave jurisdiction to some Circuit Court, the objection that there was no jurisdiction in a particula: district might be waived by appearing and pleading to the merits, and anything to the contrary said in Ex parte Wisner, 203 U. S. 449, was overruled, though the Wisner case was otherwise left untouched. See Western Loan Co. v. Butte & Boston Mining Co., 210 U. S. 368, 369. Here, however, is a case where, upon its face, no Circuit Court of the United States had jurisdiction of the controversy, originally or by removal. In such a case the consent of the parties cannot confer jurisdiction. Louisville & Nashville R. R. v. Mottley, 211 U. S. 149, and cases cited. The rule is made absolute and the writ of mandamus awarded. INDEX. ACCOUNTS AND ACCOUNTING. Jurisdiction of court of equity to decree accounting by life insurance com-. The wrongdoing of former officers of an insurance company, and their See ACTIONS, 1; ACTIONS. 1. Parties necessary to suit for accounting by policyholder against insur- 2. Personal injuries; actions for, maintainable where; law governing. 3. Personal injuries; actions for, maintainable where. Effect of act of An action for personal injuries sustained in New Mexico may be main- |