MR. CHIEF JUSTICE FULLER, after making the foregoing statement of facts, delivered the opinion of the court.

It appears from the opinions of the Circuit Court, to which we properly may refer, Loeb v. Trustees, 179 U. S. 472, that the court held that the state court had no jurisdiction so far as William C. Atwater was concerned unless it had jurisdiction. as against the foreign executor of his deceased partner; that the suit must be treated as if against the foreign executor alone; and that it could not be maintained against the foreign executor in the state court, nor in the Federal court. And further that the court was not bound to remand the case that the state court might determine that question.

The appeal was taken directly to this court, and cannot be maintained unless the case comes within the first of the classes named in section five of the judiciary act of March 3, 1891, which gives an appeal or writ of error direct "in any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision."

It is settled that the question of jurisdiction thus to be certified is the jurisdiction of the Circuit Court as a court of the United States, and not in respect of its general authority as a judicial tribunal. Blythe v. Hinckley, 173 U. S. 501; Mexican Central Railway Company v. Eckman, 187 U. S. 429; Louisville Trust Company v. Knott, 191 U. S. 225; Bache v. Hunt, 193 U. S. 523.

And the general rule is that the certificate is an absolute prerequisite to the exercise of jurisdiction here. Maynard v. Hecht, 151 U. S. 324. Although we have recognized exceptions to this rule when the explicit terms of the decree, or even of the order allowing the appeal, might properly be considered as equivalent to the formal certificate. Huntington v. Laidley, 176 U. S. 668; Arkansas v. Schlierholz, 179 U. S. 598.

But, as said by Mr. Justice Gray in Huntington v. Laidley,

"the record must distinctly and unequivocally show that the court below sends up for consideration a single and definite question of jurisdiction," that is, of the jurisdiction of the court as a court of the United States.

No such state of case is exhibited by this record. There is no certificate nor any equivalent therefor. No single and definite issue as to the jurisdiction of the Circuit Court as a Federal court is presented.

The case was dismissed for want of jurisdiction over it, as a suit against a foreign executor, in the courts of Kentucky. The court had power to so adjudicate. When a case has been removed into the Circuit Court on the ground of diversity of citizenship, that court is entitled to pass on all questions arising, including the question of jurisdiction over the subject matter in the state courts; or the sufficiency of the service of mesne process to authorize the recovery of personal judgment. Goldey v. Morning News, 156 U. S. 518; Wabash Western Railway Company v. Brow, 164 U. S. 271; De Lima v. Bidwell, 182 U. S. 1; Conley v. Mathieson Alkali Works, 190 U. S. 406. It is true that in this case a motion to remand was made, but there was nothing to indicate that it rested on the contention that there was a lack of jurisdiction in the Federal courts as contradistinguished from the state courts. It did not in terms put in issue the power of the Circuit Court as a court of the United States to hear and determine the case, and we cannot be called on to say that there may not have been other grounds for the motion, or to attempt to eliminate every other ground for the purpose of bringing the case within the first clause of section five.

We do not regard the objection now urged that the suit was in equity, and as such not cognizable by the Circuit Court, as open to consideration on this record by direct appeal, but if it were, it is unavailing on the question of power.

The principal action was an action at law. If under existing statutes of Kentucky the process of attachment or garnishment against non-residents was equitable in form, as is con

196 U. S.

Statement of the Case.

tended, this could not cut off the right of removal where diversity of citizenship existed. The right to remove given by a constitutional act of Congress cannot be taken away or abridged by state statutes, and the case being removed, the Circuit Court had power to so deal with the controversy that the party could lose nothing by his choice of tribunals. Cowley v. Northern Pacific Railroad Company, 159 U. S. 569. In our opinion the appeal was improvidently prosecuted directly to this court, and it must, therefore, be

Dismissed.

SMALLEY v. LAUGENOUR.

ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.

No. 97. Submitted November 28, 1904.-Decided January 3, 1905.

The rights of a bankrupt to exempt property are those given by the statutes of the States, and if such exempt property is not subject to levy and sale under those statutes, it cannot be made to respond under the Federal bankrupt act.

A creditor may contest the bankrupt's claim to exemption in the bankruptcy court, or may invoke the supervision and revision of the Circuit Court of Appeals, but, failing to do that, cannot, unless the order setting the bankrupt's exemption apart be absolutely void, question its validity in another proceeding in the state court.

Nor can the judgment of the state court following the order of the bankruptcy court and giving effect to the exemption be reviewed by this court on writ of error under § 709, Rev. Stat., on the ground that plaintiff in error was denied a title, right, privilege or immunity, under the Constitution or authority of the United States specially set up or claimed in the state court.

THIS was an action of ejectment commenced in the Superior Court of Lincoln County, Washington, by A. F. Smalley and F. McLellan against George F. Laugenour and Jane Laugenour (with two others, who subsequently ceased to be parties) to recover possession of certain real estate situated in that county.

:

Statement of the Case.

196 U.S.

The action was tried by the court without a jury, which filed findings of fact and conclusions of law, and rendered judgment for plaintiffs, whereupon defendants Laugenour carried the case by appeal to the Supreme Court of Washington. The judgment was there reversed and the cause remanded with directions to enter judgment for appellants, defendants below. 30 Washington, 307. This writ of error was then brought.

The facts were stated by that court in brief as follows: "The appellants are husband and wife, and acquired the land in controversy as early as the year 1885. On March 16, 1895, the respondents and one L. J. Hutchings, as partners, recovered a judgment in the Superior Court of Lincoln County on a community debt against the appellant, Geo. F. Laugenour, for the sum of $363.45. On April 12, 1899, execution was issued on the judgment and levied on the land mentioned, under which, after due advertisement, it was sold at public auction to the respondents for the sum of $532.15, being the amount then due on the judgment. Thereafter the sale was confirmed by the court, and, after the time for redemption had expired, a sheriff's deed was executed and delivered to the purchasers, which they caused to be recorded. On May 10, 1899,-three days before the execution sale took place, the appellant, Geo. F. Laugenour, filed in the United States District Court for the District of Washington his voluntary petition in bankruptcy, in the schedule to which he listed the land. in controversy, claiming the same as exempt under the bankruptcy act. On May 11, 1899, the referee in bankruptcy, to whom the proceedings had been referred, adjudged the petitioner a bankrupt, and thereupon gave to the creditors of the bankrupt, shown in the schedule attached to the petition, among whom were the respondents, the formal notice required by the bankruptcy act, notifying them of the adjudication of bankruptcy, of the time and place fixed for the first meeting of the creditors, that they might attend at such meeting, prove their claims, examine the bankrupt, and transact such other business as should properly come before the

Opinion of the Court.

meeting. None of the creditors appeared at the time fixed for the meeting, viz., June 5, 1899, and no trustee was elected or appointed; the referee finding that no necessity existed therefor. On August 9, 1899, the bankruptcy court entered an order discharging the bankrupt from all debts and claims made provable against the bankrupt's estate; and on August 12 'regularly made an order in said bankruptcy proceedings setting aside to said bankrupt as exempt under the act of Congress relating to bankruptcy, the real estate hereinbefore described, and awarding said real estate to the said bankrupt.' The court further found that since the execution sale the appellants had been in possession of the real estate, claiming to be the owners of the same; and for several years last past had resided in Spokane County, Washington, and that the real property, during the time, had been occupied by the defendant, Harry Gilliland, as their tenant. On the facts so found it ruled that the respondents were the owners and entitled to the possession of the premises, and entered judgment accordingly."

Mr. C. S. Voorhees, Mr. Reese H. Voorhees, Mr. H. A. P. Myers and Mr. W. T. Warren for plaintiffs in error.

Mr. W. C. Keegin, Mr. Herman D. Williams and Mr. James A. Williams for defendants in error.

MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

The state Supreme Court, after calling attention to the statute of the State permitting a head of a family to select from his or her real property a homestead of limited value, and exempting it from the liens of general judgments and from execution or forced sale thereunder, Ballinger's Code, § 5214 et seq., and to previous rulings of the court that the selection might be made at any time before sale, Wiss v. Stewart, 16 Washington, 376, and that an execution sale thereof after such selection was ineffectual to pass title to the purchaser, Wiss v.