leged to other of the land involved. The the principle that the form of the judgment court concluded as follows: was controlling for the purpose of ascertain "We think, therefore, that plaintiff shoulding its finality. Norfolk & S. Turnp. Co. v. be again afforded an opportunity to amend Virginia, 225 U. S. 264, 268, 56 L. ed. 1082, its petition by setting forth spe- 1085, 32 Sup. Ct. Rep. 828. cifically the particular places or portions of its property upon which the alleged trespass has been committed, together with the time and manner of the trespass." The judgment was as follows: "It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that this case be remanded to the district court, to be there proceeded with in accordance with the views expressed in this opinion [125 La. 755, 756, 51 So. 706.] Upon the theory that Federal questions 101] were involved *within the cognizance of this court, this writ of error to the judgment thus rendered was sued out. But as the judgment of the court below on its face is not a final one, it follows that a motion to dismiss must prevail. Haseltine v. Central Nat. Bank, 183 U. S. 130, 46 L. ed. 117, 22 Sup. Ct. Rep. 49; Schlosser v. Hemphill, 198 U. S. 173, 49 L. ed. 1001, 25 Sup. Ct. Rep. 654; Missouri & K. I. R. Co. v. Olathe, 222 U. S. 185, 56 L. ed. 155, 32 Sup. Ct. Rep. 46. The contention, however, is that the judgment below is final for the purpose of review by this court, because, when the opinion of the supreme court of Louisiana is carefully weighed, it will be found that that court practically finally disposed adversely to the title of the plaintiff of the substantial part of the lands involved in the suit, and hence that the court, in remanding the cause for further proceedings, did so only as to other lands. But conceding this to be true, it does not justify the claim based on it. In the first place, it is settled that this court may not be called upon to review by piecemeal the action of a state court which otherwise would be within its jurisdiction, and in the second place, the rule established by the authorities to which we have referred is that, on the question of finality, the form of the judgment is controlling, and hence that this court cannot, for the purpose of determining whether its reviewing power exists, be called upon to disregard the form of the judgment in order to ascertain whether a judgment which is in form not final might, by applying the state law, be treated as final in character. Indeed, it has been pointed out that the confusion and contradiction which inevitably arose from resorting to the state law for the purpose of converting a judgment not on its face final into one final in character was the dominating reason leading to the establishment of We The suggestion that the right to review by this court will be lost if it does not disregard the form of the judgment, *and[102 review the action of the court below concerning the title to land as to which the court below expressed opinions which, as the law of the case, will hereafter be binding upon it and upon other courts of the state of Louisiana, is without merit. say this because the contention is but illustrative of the misconception which the argument involves, which we have already pointed out. The rule which excludes the right to review questions arising in a cause depending in a state court until a final judgment is rendered by such court involves as a necessary correlative the power and the duty of this court when a final judgment in form is rendered and the cause is brought here for review, to consider and pass upon all the Federal controversies in the cause, irrespective of how far it may be that by the state law such questions were concluded during the litigation, and before a final judgment susceptible of review here was rendered. Chesapeake & O. R. Co. v. McCabe, 213 U. S. 207, 214, 53 L. ed. 765, 768, 29 Sup. Ct. Rep. 430. Of course, for the purpose of disposing of the motion to dismiss upon the ground of the want of finality of the judgment, we have taken it for granted, for the sake of the argument, that the case otherwise involved Federal questions within our power to review. Dismissed for want of jurisdiction. assertion proceeding upon the assumption, of the petitioners to have the case removed, that if the evidence in the case was properly and denied them the right granted to them weighed and the legal principles applicable by the act of Congress. were correctly applied, the individual defendant could not be held personally liable on the contract, is too unsubstantial and frivolous to serve as the basis of a writ of error from the Federal Supreme Court to a state court. 2. The conclusion that a writ of error from the Federal Supreme Court to a state court has been prosecuted for delay is the necessary inference from an order of dismissal because of the unsubstantial and frivolous character of the only asserted Federal question. is not an admission of joint liability. Hayden v. Nott, 9 Conn. 367; 31 Cyc. 138; Messrs. Aldis B. Browne and Charles W. Dorr submitted the cause for defendant in error. Messrs. S. M. Bruce and Hiram E. Hadley were on the brief: The decision of a state court that a Federal right has been waived does not, under the settled practice of this court, raise Federal question, for the simple reason that [For other cases, see Appeal and Error, VII. such a decision does not involve the denial 1, 6, in Digest Sup. Ct. 1908.] -dam Error to state court — dismissal an order for the dismissal of a writ of er- of a Federal right, but admits the existence of the Federal right, which, however, because of the action or inaction of a party, is held to have been lost, and for the further reason that such a holding is based upon a finding of fact, and not of law. Whether the decision of the state court to the effect that there has been a waiver of the Federal right claimed is well founded or not makes no difference, and creates no Federal question reviewable in this court. Beaupre v. Noyes, 138 U. S. 397, 401, 34 [For other cases, see Appeal and Error, IX. L. ed. 991, 992, 11 Sup. Ct. Rep. 296; Eustis h, in Digest Sup. Ct. 1908.] [No. 511.] v. Bolles, 150 U. S. 361, 369, 370, 37 L. ed. 1111, 1113, 14 Sup. Ct. Rep. 131; Rutland R. Co. v. Central Vermont R. Co. 159 U. S. Submitted November 4, 1912. Decided De- 630, 640, 40 L. ed. 284, 289, 16 Sup. Ct. cember 2, 1912. N ERROR to the Supreme Court of the Rep. 113; Gillis v. Stinchfield, 159 U. S. 658, 660, 40 L. ed. 295, 296, 16 Sup. Ct. Rep. 131; Seneca Nation v. Christy, 162 U. I State of Washington to review a fudge 5. 283, 289, 40 L. ed. 970, 972, 16 Sup. Ct. ment which affirmed a judgment of the Superior Court for the County of Whatcom, in that state, in favor of plaintiff in an action for a breach of contract. Dismissed for want of jurisdiction, with damages for delay. Rep. 828; Pierce v. Somerset R. Co. 171 U. S. 641, 648, 650, 43 L. ed. 316, 319, 320, 19 Sup. Ct. Rep. 64; Leonard v. Vicksburg, S. & P. R. Co. 198 U. S. 416, 422, 423, 49 L. ed. 1108, 1111, 25 Sup. Ct. Rep. 750. Even admitting that the supreme court of See same case below, 62 Wash. 455, 114 Washington denied to plaintiffs in error a Pac. 172. The facts are stated in the opinion. Mr. James A. Kerr submitted the cause for plaintiff in error. Mr. E. S. McCord was on the brief: Deming was fraudulently and wrongfully made a party to the case without cause and without right, and for the fraudulent purpose of depriving the Federal court of jurisdiction. Wecker v. National Enameling & Stamping Co. 204 U. S. 176, 51 L. ed. 430, 27 Sup. Ct. Rep. 184, 9 Ann. Cas. 757. Regardless of whether the opinion in express language evaded the decision of the Federal question, the judgment in effect did pass upon the question, and denied the right right claimed under a Federal statute, nevertheless, inasmuch as the record clearly shows that plaintiffs in error did in fact waive whatever right to remove they may have had, and inasmuch as this alone is sufficient to sustain the decision of that court, there is no Federal question involved in the case; for it is well settled that in order to sustain the jurisdiction of this court, it must appear that the decision of the Federal question claimed to be involved in the case was necessary to the determination of the cause. Mississippi & M. R. Co. v. Rock, 4 Wall, 177 180, 181, 18 L. ed. 381-383; Murdock v. Memphis, 20 Wall. 590, 634, 635, 22 L. ed. 429, 443, 444; Johnson v. Risk, 137 U. S. 300, 307, 309, 34 L. ed. 683, 686, 687, 11 Sup. Ct. Rep. 111; Cook County v. Calumet &C. Canal & Dock Co. 138 U. S. 635, 651, 34 L. ed. 1110, 1115, 11 Sup. Ct. Rep. 435; Eustis v. Bolles, 150 U. S. 361, 366, 367, 37 L. ed. 1111, 1112, 14 Sup. Ct. Rep. 131. The decision of the court that Deming was a real party to the contract sued on, and in negotiating the same did not act merely as the agent of the other plaintiffs in error, was a finding of law, but of the law of Washington, the locus celebrationis of the contract, and involved no Federal question. Under these circumstances there is no reviewable question in the case. Merced Min. Co. v. Boggs, 3 Wall. 304, 310, 18 L. ed. 245, 247; Eilers v. Boatman, 111 U. S. 356, 28 L ed. 454, 4 Sup. Ct. Rep. 432, 15 Mor. Min. Rep. 471; Crary v. Devlin, 154 U. S. 619, 23 L. ed. 510, 14 Sup. Ct. Rep. 1199; Telluride Power Transmission Co. v. Rio Grande Western R. Co. 175 U. S. 639, 645-647, 44 L. ed. 305, 308, 309, 20 Sup. Ct. Rep. 245; Telluride Power Transmission Co. v. Rio Grande Western R. Co. 187 U. S. 569, 579, 47 L. ed. 307, 311, 23 Sup. Ct. Rep. 178; McMillen v. Ferrum Min. Co. 197 U. S. 343, 347, 49 L. ed. 784, 787, 25 Sup. Ct. Rep. 533. ton, and the corporations were *alleged [104 to be citizens of states other than Washington. The defendants were sued jointly for a violation by them of a contract alleged to have been jointly made for the purchase of salmon. There was a joint answer by the defendants, putting at issue the material allegations of the complaint. There was a jury trial. When the Carlisle Company rested, motions for nonsuit were separately made on behalf of each of the defendants and were overruled. After the defendants had offered their proof and the case was ripe for submission, the counsel for the two cor porate defendants presented a petition and bond for the removal of the cause to the proper Federal court, and asked that the bond be approved and further proceedings be stayed. The asserted right to remove proceeded upon the assumption that Deming had been fraudulently joined as a defendant for the purpose of preventing the two nonresident defendants from removing the case. This was supported by the contention that the proof as offered left no doubt that Deming had made the contract declared on merely as the agent of the two corporations, and was therefore not personally bound. In denying the petition to remove, the trial judge directed attention to the fact that the motion made at the close of the plaintiff's proof for a nonsuit in favor of Deming had been denied because the court was of opinion that there was evidence to go to the jury on the question of the liability of that defendant, and further observed that the situation in this respect had not been altered by the testimony introduced for the defendants. The cause was submitted to the jury upon instructions which, among other things, left it open to find against less than all of the defendants if the jury believed that the contract had not been made with all. There was a verdict for the plaintiff against all the defendants, and a judgment entered thereon was affirmed by the supreme court of the state. 62 Wash. 455, 114 Pac. 172. The appellate court, among other things decided that no error had been committed [105 in overruling the motions for nonsuit and in denying the petition to remove, and in substance held that the plaintiff had the right to join Deming as a party defendant. The prosecution of this writ of error is Mr. Chief Justice White delivered the based upon the assumption that a Federal opinion of the court: Admitting, for purposes of argument, that a Federal question is involved in the case, that question is so wholly devoid of merit, and has been so explicitly foreclosed by the decisions of this court, as to leave no room for real controversy in the matter. To warrant this court in assuming jurisdiction of a case, the Federal question asserted to be involved therein must be "a real, substantive question." Millingar v. Hartupee, 6 Wall. 258, 261, 18 L. ed. 829, 830; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 87, 35 L. ed. 943, 946, 12 Sup. Ct. Rep. 142; St. Joseph & G. I. R. Co. v. Steele, 167 U. S. 659, 662, 42 L. ed. 315, 316, 17 Sup. Ct. Rep. 925; Wilson v. North Carolina, 169 U. S. 586, 595, 42 L. ed. 865, 871, 18 Sup. Ct. Rep. 435; New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 344-346, 46 L. ed. 936, 941, 942, 22 Sup. Ct. Rep. 691; Equitable Life Assur. Soc. v. Brown, 187 U. S. 308, 311–315, 47 L. ed. 190, 192, 193, 23 Sup. Ct. Rep. 123; Hamblin v. Western Land Co. 147 U. S. 531, 532, 37 L. ed. 267, 268, 13 Sup. Ct. Rep. 353. The Carlisle Packing Company, a corporation of the state of Washington, sued in a court of that state Deming and the two corporations who, with him, are the plaintiffs in error on this record. Deming was a citizen and resident of the state of Washing. question was involved in the refusal to grant the petition for removal. In view, however, of the well-settled and, indeed, now elementary doctrine that although a record may present in form a Federal question, a motion to dismiss will be allowed where it plainly appears that the Federal is question is of such an unsubstantial character as to cause it to be devoid of all merit, and therefore frivolous, we think it is our duty to grant a motion to dismiss which has been here made. We reach this conclusion because the case was not a removable one when it was called for trial. Not being removable before trial, the plaintiff had the right to have the issues of fact and law raised determined in the state court which had jurisdiction over the cause. This power could not be destroyed by the mere act of the defendants, or one of them, in asking a removal based upon the assumption that if the evidence in the case was properly weighed and the legal principles applicable were correctly applied there would result a condition from which a right to remove would arise. On its face the assertion of such a right involved two propositions, whose unsubstantial character made manifest by their mere statement: (a) That the state court had jurisdiction over the cause, but had no right to exercise that jurisdiction; (b) that a Federal court could endow itself with jurisdiction over a cause to which its authority did not extend¦ by disregarding the pleadings and wrong fully assuming the right to revise the decision of the state court on matters of an absolutely non-Federal character which that court had the right to decide. Nor is there force in the suggestion that the right to remove under the circumstances stated finds 106]support in the ruling in Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264, since in that case a separable controversy on the face of the record arose at the opening of the trial, consequent on the discontinuance by the plaintiff of his action as against the resident defendant whose joinder had, up to that time, made the action nonremovable. The difference between that case, and the one here presented is apparent, and, at the time the petition for removal was presented and this writ of error was sued out, had been pointed out in decisions of this court. Whitcomb v. Smithson, 175 U. S. 635, 44 L. ed. 303, 20 Sup. Ct. Rep. 248; Alabama G. S. R. Co. v. Thompson, 200 U. S. 206, 217, 50 L. ed. 441, 447, 26 Sup. Ct. Rep. 161, 4 Ann. Cas. 1147; Illinois C. R. Co. v. Sheegog, 215 U. S. 308, 54 L. ed. 208, 30 Sup. Ct. Rep. 101. Does the power to award damages for delay exist where a writ of error is dismissed because of the unsubstantial and frivolous character of the asserted Federal right and the conclusive inference that the writ was prosecuted for mere delay, which arises from sustaining such ground for dismissal? is then the question. That the comprehensive text of rule 23, embracing, as it does, "all cases" where a writ of error shall appear to have been sued out for mere delay, brings this case within its purview, is obvi ous. But as the power which the rule expresses depends upon Rev. Stat. § 1010 (U. S. Comp. Stat. 1901, p. 715), we must consider the subject in the light of the statute. The power conferred is to impose damages for delay in cases "where, upon a writ of error, judgment is affirmed in the supreme court. . . .” It has been decided that where there was no power on a motion to dismiss, to consider whether a case was prosecuted for delay only, that a prayer for dismissal on such "ground could not be allowed and dam-[107 ages could not be awarded. Amory v. Amory, 91 U. S. 356, 23 L. ed. 436. But the mere statement of the doctrine demonstrates that it rested upon the obvious proposition that a decree would not be made to embrace subjects which the court was not empowered to consider in determining whether the relief asked for should be awarded. This doctrine has no application here, since, by a line of cases announced subsequent to the decision in Amory v. Amory, it has come to be settled that on a motion to dismiss, it is the duty of the court to consider whether an asserted Federal question is devoid of merit and unsubstantial, either because concluded by previous authority, or because of its absolutely frivolous nature, and if it is found to be of such character, to allow a motion to dismiss. This being true, as the conclusion that a writ of error has been prosecuted for delay is the inevitable result of a finding that it has been prosecuted upon a Federal ground which is unsubstantial and frivolous, it follows that the question of delay is involved in and requires to be considered in passing "pon a motion to dismiss because of the frivolous character of the Federal question. The decisions of this court also leave it no longer open to discussion that where it is found that a Federal question upon which a writ of error is based is unsubstantial and frivolous, the duty to affirm results. Dismissing the writ of error, as we shall therefore do for the reasons stated, it remains to consider whether we should grant a prayer for damages for delay which has been made. That the unsubstantial and frivolous character of the only Federal question relied upon of necessity embraces the conclusion that the writ was prosecuted for delay is, in our opinion, indubitable.nute v. Trader, 132 U. S. 210, 33 L. ed. 345, We have, then, this situation: the find. ing that a particular ground—that is, the frivolity of the Federal question-exists indifferently justifies either a judgment of affirmance or an order of dismissal. Cha 10 Sup. Ct. Rep. 67; Richardson v. Louis-, ville & N. R. Co. 169 U. S. 128, 42 L. ed. 687, 18 Sup. Ct. Rep. 268; Blythe v. Hinckley, 180 U. S. 338, 45 L. ed. 561, 21 Sup. Ct. Rep. 390; New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 345, 46 L. ed. 936, 941, 22 Sup. Ct. Rep. 691; Equitable Life Assur. Soc. v. Brown, 187 U. S. 308, 47 L. ed. 190, 23 Sup. Ct. Rep. 123. The want of substantial difference between the two, as well as the rule which should determine the practice to be followed in awarding, in such a case, one or 108] *the other, either affirmance or dismissal, was pointed out in the Equitable Case. Thus, the court said (187 U. S. 314): "From the analysis just made, it results | that although a Federal question was raised below in a formal manner, that question, when examined with reference to the averments of fact upon which it was made to depend, is one which has been so explicitly decided by this court as to foreclose further argument on the subject, and hence to cause the Federal question relied upon to be devoid of any substantial foundation or merit. It is likewise also apparent from the analysis previously made that even if the formal raising of a Federal question was alone considered on the motion to dismiss, and therefore the unsubstantial nature of the Federal questions for the purposes of the motion to dismiss were to be put out of view, the judgment below would have to be affirmed. This follows, since it is plain that as the substantiality of the claim of Federal right is the matter upon which the merits depend, and that claim being without any substantial foundation, the motion to affirm would have to be granted under the rule announced in Chanute v. Trader, 132 U. S. 210, 33 L. ed. 345, 10 Sup. Ct. Rep. 67; Richardson v. Louisville & N. R. Co. 169 U. S. 128, 42 L. ed. 687, 18 Sup. Ct. Rep. 268 and Blythe v. Hinckley, 180 U. S. 338, 45 L. ed. 561, 21 Sup. Ct. Rep. 390. This being the case, it is obvious that on this record either the motion to dismiss must be allowed or the motion to affirm granted, and that the allowance of the one or the granting of the other as a practical question will have the like effect, to finally dispose of this controversy. As this is a case governed by the principles controlling writs of error to state courts, it follows that the Federal question upon which the jurisdiction depends is also the identical question upon which the merits depend, and therefore the unsubstantiality of the Federal question for the purpose of the motion to dismiss and its unsubstantiality for the purpose of the motion to affirm are one and the same thing, —that is, the two questions are therefore absolutely coterminous. Hence, *in[109 reason, the denial of one of the motions, necessarily involves the denial of the other, and hence, also, one of the motions cannot be allowed except upon a ground which also would justify the allowance of the other." Stating that in such a case the determination whether a judgment of affirmance would be awarded or an order of dismissal be allowed involved nothing whatever of substance, but mere form of statement, as the two were the equivalent one of the other, it was observed that the better practice, where the question was not inherently Federal, was to adopt the form of allowing a motion to dismiss; the court, on the sub ject of the inherently Federal question, referring to Swafford v. Templeton, 185 U. S. 487, 493, 46 L. ed. 1005, 1008, 22 Sup. Ct. Rep. 783. The inquiry, then, narrows itself to this: Does the power to award the damages for delay which the statute confers in cases of affirmance give the authority to exert the power where, in form, there is no judgment of affirmance, but only an order of dismissal? To say that the duty to impose the statutory damage in such a case did not exist would require us to hold that things which were one and the same must be held to be different, and that the statute did not extend to and include that which in substance it embraced, because, by adhering blindly to mere form of words, the statute might be treated as not extending to an authority embraced within its spirit and purpose. No more cogent demonstration of the truth of this view could be given than by pointing out that if the proposition were not true, it would follow that in no case could this court, without operating injustice, grant a motion to dismiss because of the frivolous and unsubstantial nature of the alleged Federal ground. This would be the case, since, if greater right would be conferred by affirming on such ground, the duty would arise to follow that practice instead of the practice of dismissing. Indeed, the subject is further aptly illustrated by directing attention to the fact that it is not questioned that the power here obtains *to direct[110 the imposition of the penalty if the result of our conclusion that the Federal ground was frivolous be followed by an affirmance instead of an order of dismissal. Because of the absolute coincidence between a dismissal on account of the frivolous and unsubstantial character of the Federal question relied upon and an affirmance upon the same ground, we are of opinion that the statutory authority to impose the penalty obtains in either case. In stating the reasoning which has led us to this conclusion we have not been unmindful of, although |