A railroad in whose service Tobin lost his life while actually engaged in carrying on interstate commerce, admitting liability under the act of Congress, paid the conceded loss to his administrator. A father and mother, but no widow or children, survived. The father, the respondent, sued in a state court to recover half the amount as his share of the loss. Setting aside the action of the trial court rejecting the claim, but not specifically fixing the amount of the father's recovery, the Supreme Court of South Dakota directed a new trial to accomplish that result. Application for certiorari was then made by the petitioner on the ground that such decision involved questions under the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]) reviewable by certiorari under the Act of Congress of September 6, 1916, c. 448, 39 Stat. 726.

The act in question, although it deprived of the right of review by writ of error which had hitherto obtained in certain cases and substituted as to such cases the right of petitioning for review by certiorari subjected this last right to the same limitation as to the finality of the judgment of the state court sought to be reviewed which had prevailed from the beginning under section 709, Rev. Stat. (section 237, Judicial Code [Comp. St. 1916, § 1214]). Finality, therefore, continues to be an essential for the purposes of the remedy by certiorari conferred by the act of 1916.

It may be indeed said that although the case was remanded by the court below for a new trial, the action of the court was in a sense final because it determined the ultimate right of the father to recover and the general principles by which that right was to be measured. But that contention is not open as it was settled under section 709, Rev. Stat. (section 237, Judicial Code), that the finality contemplated was to be determined by the face of the record and the formal character of the judgment rendered—a principle which excluded all conception of finality for the purpose of review in a judgment like that below rendered. Haseltine v. Bank, 183 U. S. 130, 22 Sup. Ct. 49, 46 L. Ed. 117; Schlosser v. Hemphill, 198 U. S. 173, 25 Sup. Ct. 654, 49 L. Ed. 1000; Louisiana Navigation Co. v. Oyster Commission of Louisiana, 226 U. S. 99, 33 Sup. Ct. 78, 57 L. Ed. 138; Coe v. Armour Fertilizer Works, 237 U. S. 413, 418, 419, 35 Sup. Ct. 625, 59 L. Ed. 1027. The reenactment of the requirement of finality in the act of 1916 was in the nature of things an adoption of the construction on the subject which had prevailed for so long a time.

There being then no final judgment within the contemplation of the act of 1916, the petition for a writ of certiorari is denied.