“ As it is not claimed that, by reason of the shifting from one law to the other, the defendant was cut off from presenting any defense which was open only under the latter, or that the course taken by the plaintiff deprived the defendant of a right of removal otherwise existing, we intimate no opinion in either connection. ”

“ There was a plea of not guilty; and upon the trial, the proof failing to show that the injury occurred in interstate commerce, the court, at the defendant's request, instructed the jury that the Federal employers' liability act had no application to the case. Then, over the defendant's objection, the court treated the allegation respecting interstate commerce as eliminated, and submitted the case to the jury as one controlled by the common law prevailing in the state. The plaintiff recovered under that law. ”

“ The judgment was affirmed by the appellate court for that district (180 Ill. App. 511) , which was the highest court of the state in which a decision of the case could be had, and this writ of error was then sued out by the company. By a motion to dismiss the writ our jurisdiction to review the judgment is challenged. ”