Joseph McKenna

“ Granting it to have been error, we are powerless to review it. The expression as to the determination of a case 'upon its merits' was used in distinction to the review of a question of jurisdiction, strictly so called,-the right of the circuit court to entertain the case at all. As to such questions, other rules apply than those we have expressed in this opinion. It was not intended to decide that the circuit court of appeals must hear the case on the merits in the broad sense of that expression, disregarding every error committed in seeking a review by that court. ”

“ In other words, petitioner claims that he has a right to the writ of error under the Constitution of the United States, art. 3, § 2.'
But we may pass that, as we are not called upon to concede or deny that a case in which conflicting grants from different states to citizens of different states appear is one arising under the Constitution of the United States. If it be such a case it should be brought here directly from the circuit court, and Loeb v. Columbia Twp. applies. If it be not such a case, the other cases which we have cited apply. There is nothing to the contrary in Northern P. R. Co. ”

“ We questioned the consistency of the reasoning upon which the conclusion was based, but recognized and yielded to authority, and we assigned the case to that class of cases which was not dependent solely upon diversity of citizenship. ”