It would seem that the reasons given for dismissing the appeal as to the other decrees apply with equal force to the one now under consideration; and such, we think, would be the rule in ordinary cases; for the existence and amount of the deficiency must usually be dependent on the findings of the decree of foreclosure and sale, as to the amount due, and the extent to which that may have been reduced by the proceeds of the sale. But the present judgment is not in the customary form. Instead of finding the amount due to the complainants in whose behalf the sale was decreed, the judgment is rendered in favor of Huidekoper, Shannon, and Denison, as trustees for the bondholders. They claim not to have been parties to the suit at the time the decree of foreclosure and sale was rendered, and as we do not consider it proper to investigate or pass upon that claim in the present proceeding, we entertain the appeal, as to the deficiency decree, and reverse it, for the error which required the reversal of the decree of foreclosure and sale.

The argument of the present appeal, on both sides, seems to have been influenced by the consideration that it possibly involved a present adjudication of the effect its determination might have upon the rights of the purchasers at the sale and the present title of the property sold. But no question of that character is involved. Whether the purchasers were parties to the litigation, either by name upon the record or in interest and by representation, so as to.be affected by the error in the proceeding for which the decrees have been reversed, or whether they or their assigns are protected by the principle and policy that uphold the titles of bona fide purchasers without notice, at judicial sales, and any other that may be mooted touching the point, are questions which do not arise upon the present appeal, and are left for further consideration in case they should be presented in a subsequent stage of this or by virtue of proceedings in some other suit.

For the reasons announced, it is therefore ordered that the appeal from the decrees of April 12, 1877, and of April 16, 1877, respectively, be dismissed, upon the ground that the decrees were vacated by the reversal of the prior decree of foreclosure and sale, rendered December 5, 1876, and that the decree entered November 19, 1877, in favor of Frederick W. Huidekoper, Thomas W. Shannon, and John M. Denison, trustees, be reversed, and that the cause be remanded with directions to proceed therein as may be just and equitable.

The appellants are entitled to their costs on this appeal.

(106 U. S. 1)

PARKER v. MORRILL.

(October 23, 1882.)

APPEAL-MATTER IN DISPUTE.

Where it does not appear in the record, or by affidavits, that the value of the matter in dispute exceeds $5,000, the appeal will be dismissed.

Appeal from the Circuit Court of the United States for the District of West Virginia. On motion to dismiss.

Gideon D. Camden, for the motion.

D. D. Lord, opposed.

WAITE, C. J. This is a motion to dismiss for the reason that it does not appear in the record or by affidavits that the value of the matter in dispute exceeds $5,000. The record shows that Willard Parker, Jr., the appellant, as the owner of one undivided twentieth part of a large tract of land in West Virginia, embracing within its boundaries several hundred thousand acres, filed his bill in equity against Willard Parker, Sr., as the owner of the remaining nineteentwentieths, and Morrill, the appellee, for a partition as between himself and Parker, Sr., and to remove a cloud upon the title to a part of the tract caused by a claim set up by Morrill. Upon the hearing the court below dismissed the bill as to Morrill, and from a decree to that effect Parker, Jr., took this appeal. Parker, Sr., did not appear as an actor in the court below, and has not united in the appeal. The lands claimed by Morrill are not described, either in the bill or in the answer of Morrill, otherwise than by reference to certain patents, under which he assumed to hold. These patents covered between fifty and sixty thousand acres. In one of the depositions it is shown that when the suit was begun Morrill claimed about 25,000 acres. The value of the property is nowhere stated. The whole tract in which Parker, Jr., claimed his undivided interest included very much more than the Morrill lands. On the eleventh of January, 1854, this whole tract was conveyed to Peter Clark by deed reciting a consideration of $3,090. Clark, on the twenty-ninth of March, 1854, conveyed it to William W. Campbell by deed, in which the consideration is stated to have been $8,000. On the fifth of May, 1858, Campbell conveyed to Parker, Sr., for a nominal consideration, and on the second of November, 1872, Parker, Sr., conveyed the one undivided twentieth to Parker, Jr., for $2,000. In his petition for this appeal, filed September 8, 1880, Parker, Jr., states the value of

the lands claimed by Morrill to be over $2,000. Notice of the present motion was served on the counsel for the appellant in May last. The brief in support of the motion was filed here on the sixth of May. That of the appellant was filed on the seventh of October. Notwithstanding the dismissal was claimed on account of the value of the matter in dispute, no attempt has been made by the appellant to supply the defect in the record by affidavits, as under our practice might have been done; but to defeat the motion he relies entirely on the evidence of value to be found in the record.

As the case stands, only the interest of Parker, Jr., in the lands is in question here. This is one undivided twentieth part only. As Parker, Sr., has not appealed, the value of his interest in the property cannot be taken into the account. The claim of Morrill is only for 25,000 acres. One-twentieth of this would be 1,250 acres; and certainly, in the light of the facts appearing all through the record, we cannot say that their value exceeds $5,000.

The motion to dismiss is granted.

(106 U. S. 3)

BOSTWICK, Receiver, etc., and others v. BRINKERHOFF.

(October 23, 1882.)

APPEAL-FINAL JUDGMENT.

A judgment of reversal of the highest court of a state deciding that the suit may be sustained in the state courts, with leave for further proceedings in the court below, is not a final judgment from which a writ of error will lie.

In Error to the Court of Appeals of the State of New York. On motion to dismiss.

E. L. Fancher, for plaintiffs in error.

J. Hervey Cook, for defendant in error.

WAITE, C. J. This was a suit begun in the supreme court of the state of New York by a stockholder in a national bank against the directors to recover damages for their negligence in the performance of their official duties. A demurrer was filed to the complaint, which raised, among others, the question whether such an action could be brought in a state court. The supreme court at special term sustained the demurrer and dismissed the complaint. This judgment was affirmed at general term. An appeal was then taken to the court

of appeals, where it was ordered and adjudged "that the judgment of be * the general term reversed and judgment rendered for plaintiff on demurrer, with costs, with leave to the defendants to withdraw the demurrer within 30 days, on payment of costs, * and to answer the complaint." It was also further ordered that the record and the proceedings in the court of appeals be remitted to the supreme court, "there to be proceeded upon according to law." From this judgment of the court of appeals a writ of error was taken to this court, which the defendant in error now moves to dismiss because the judgment to be reviewed is not a final judg

ment.

The rule is well settled and of long standing that a judgment or decree to be final, within the meaning of that term as used in the acts of congress giving this court jurisdiction on appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered. Whiting v. Bank of U. S. 13 Pet. 15; Forgay v. Conrad, 6 How. 204; Craighead v. Wilson, 18 How. 201; Beebe v. Russell, 19 How. 285; Bronson v. Railroad, 2 Black, 531; Thomson v. Dean, 7 Wall. 345; St. Clair Co. v. Livingston, 18 Wall. 628; Parcels v. Johnson, 20 Wall. 654; Railroad Co. v. Swasey, 23 Wall. 409; Crosby v. Buchanan, Id. 453; Com'rs v. Lucas, 93 U. S. 113. It has not always been easy to decide when decrees in equity are final within his rule, and there may be some apparent conflict in the cases on that subject, but in the common-law courts the question has never been a difficult one. If the judgment is not one which disposes of the whole case on its merits, it is not final. Consequently it has been uniformly held that a judgment of reversal with leave for further proceedings in the court below cannot be brought here on writ of error. Brown v. Union Bank, 4 How. 466; Pepper v. Dunlap, 5 How. 51; Tracy v. Holcombe, 24 How. 426; Moore v. Robbins, 18 Wall. 588; McComb v. Knox Co. 91 U. S. 1; Baker v. White, 92 U. S. 176; Davis v. Crouch, 94 U. S. 514. This clearly is a judgment of that kind. The highest court of the state has decided that the suit may be maintained in the courts of the state. To that extent the litigation between the parties has been terminated, so far as the state courts are concerned, but it still remains to decide whether the directors have in fact been guilty of the negligence complained of, and, if Fo, what damages the stockholders have sustained in consequence of their neglect. The court of appeals has given the defendants leave

to answer the complaint, and the trial court has been directed to proceed with the suit accordingly. Such being the case, it can in no sense be said that the judgment we are now called on to review terminates the litigation in the suit.

The motion to dismiss is granted.

(108 U. S. 5)

CRANE IRON Co. v. HOAGLAND and others.

WURTS and others v. THE SAME.

(October 23, 1882)

WRIT OF ERROR-STATE COURT-PRACTICE.

On a writ of error to the supreme court of a state, where the records have not been printed, this court can look only to the statements of counsel as they appear in the briefs; and where the assignment of errors has been printed in defendants' brief, and some of such assignments clearly present questions of which we have jurisdiction, motions to dismiss will be denied.

Where the questions involved are not of a character that this court will be inclined to consider, on a motion to affirm, such motion will be denied.

Where the showing is insufficient, motions to advance will be denied.

In Error to the Supreme Court of the State of New Jersey. Motions to dismiss, with which are united motions to affirm, to strike out certain assignments of error, and to advance.

J. G. Shipman, for plaintiffs in error.

Theo. Little, for defendants in error.

WAITE, C, J. These are writs of error to the supreme court of New Jersey, and the motions to dismiss are made because, as is claimed, no federal question is involved. The records have not been printed, and on these motions we can look only to the statements of counsel as they appear in the briefs. The assignment of errors has been printed in the brief for the defendants, and the second and fifth assignments clearly present questions of which we have jurisdiction. Whether the errors thus assigned appear in the records we cannot on these motions, as they are now presented, finally determine, but in the absence of any showing to the contrary we will presume they do. The motions to dismiss must therefore be overruled.

The questions involved are not of a character that we are inclined to consider on a motion to affirm, especially before the record is