Ex parte Hoard

delivered the opinion of the court.

The Chesapeake and Ohio Railroad Company began a suit in a State- court of West Virginia to appropriate lands for the use of its road. To this suit the present petitioners, with others, were parties. The company, at a certain stage of the proceedings, filed a petition under the act of March 3, 1875, c.. l:-'>7. for the removal of the suit to the District Court of the United States for the District of West Virginia, having Circuit Court powers. After the petition was filed and security given

Before the act of 1875, it was held, in Insurance Company v. Comstock ( 16 Wall. 258 ), followed in Railroad Company v. Wiswall (28 id. 507), that if a Circuit Court refused to take jurisdiction of a suit which had been properly removed, the remedy was by mandamus from this court " to compel the Circuit Court to proceed to a final judgment or decree,” and not by writ of error'’or appeal.- This was 'on the authority of Ex parte Bradstreet ( 7 Pet. 633 ),. in which Mr. Chief Justice Marshall delivered the opinion. No case can be found, however, in which a mandamus has been used to compel a court to remand a cause after it has once refused a motion to that effect. The distinction is obvious. An order remanding a cause is not a final judgment or decree, from which ordinarily an appeal or a writ of error can be taken ; and in Ex parte Bradstreet it was stated, as the reason for allowing the mandamus, “ that every party has a right tó the judgment of this court in a suit brought by him in one of the inferior courts of the United States, provided the value of the matter in dispute exceeds the sum or value of two thousand dollars,” now, of course, five thousand. If the cause be retained, it -may go to final judgment or decree, and the reason assigned for the mandamus in case of dismissal does not exist. If it be improperly retained and the objection presented on the record, the question may be brought here for review after final judgment, if the amount involved is sufficient to give us jurisdiction. We so held at this term in Railroad Company v. Koontz, 104 U. S. 5 . It is of no importance that the value of the matter in dispute may be less than §5,([00. Jurisdiction has been given to the Circuit Court to determine whether the cause is one that ought to be remanded. The act of 1875 has given an appeal or a writ of error to this court for the review of orders to remand,

Without determining, therefore, whether the case was properly removed or not, the writ is

Denied.