Opinion of the Court.

fects can be remedied by amendment, and the court is of the opinion that substantial justice requires it. But when an application to amend is not made within a reasonable time and the bill is dismissed, it is out of court, and there is nothing to amend. In this case, instead of asking the court to strike out the decree dismissing the bill so that it could amend, the appellant took an appeal. The case was thus beyond the right of the plaintiff to amend or to file a supplemental or ancillary bill. But, in addition to that, the reasons assigned in the petition were not sufficient to authorize the interposition of a court of equity. The order of the court in refusing to allow the plaintiff to file an ancillary bill' must be affirmed.

"Order affirmed with costs to the appellee."

There is more confusion when we come to the petition for writ of error. It does not distinguish between these judgments except by a reference to the assignment of errors. The petition recites "that on or about the 5th day of June, 1897, this court [Court of Appeals] entered a decree herein in favor of the defendant, the appellee, and against this plaintiff." It then recites that there was drawn in question the validity of a statute or an authority exercised under the United States, and the decision was against the validity, and also the validity of a statute or an authority exercised under the State on the ground of repugnancy to the Constitution of the United States, and the decision was in favor of the validity, and that "certain errors were committed to the prejudice of this complainant, the appellant, all of which will more fully appear from the assignment of errors, which will be duly filed herein."

The assignment of errors is as follows:

"Afterwards, to wit, on the first Monday of October, in this same term, before the Justices of the Supreme Court of the United States, at the Capitol, in the city of Washington, comes The Chappell Chemical and Fertilizer Company, by Thomas C. Chappell, its attorney, and says that in the record and proceedings aforesaid there is manifest error in this, to wit, that the demurrer aforesaid and the matters therein contained are not sufficient in law for The Sulphur Mines Com

Opinion of the Court.

pany of Virginia to have or maintain its aforesaid decree against the said The Chappell Chemical and Fertilizer Company. There is also error in this, to wit, that by the record. aforesaid it appears that the decree aforesaid given was given for the said The Sulphur Mines Company of Virginia against the said The Chappell Chemical and Fertilizer Company, whereas by the law of the land the said decree ought to have been given for the said The Chappell Chemical and Fertilizer Company against the said The Sulphur Mines Company of Virginia; and the said The Chappell Chemical and Fertilizer Company prays the judgment and decree aforesaid may be reversed, annulled and held for nothing, and that it may be restored to all things which it has lost by occasion of said judgment, etc."

The writ of error therefore is directed to the decree of the Court of Appeals affirming the decree of the lower court of the 2d of June, 1896, while the only appeal that the record contains is from the decree of the latter of the 22d of August, 1896.

But passing by this confusion, and regarding both decrees before us, we come to the motion to dismiss made by the defendants in error on the ground that no Federal question was raised in the state court.

This is true as to all the pleadings and papers, except the petition of the 22d of August, 1896, for leave to file an ancillary bill. If, however, a Federal question was raised by the petition and on the appeal from the order denying it, the motion to dismiss must nevertheless be granted, because the decision of the Court of Appeals rests on grounds other than those dependent on Federal questions. Simmerman v. Nebraska, 116 U. S. 54; Eustis v. Bolles, 150 U. S. 361; California Powder Works v. Davis, 151 U. S. 389; Missouri Pacific Railway v. Fitzgerald, 160 U. S. 556; Fowler v. Lamson, 164 U. S. 252; see also Iowa Central Railway v. Iowa, 160 U. S. 389; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, and Miller v. Cornwall Railroad Co., 168 U. S. 131. The writ of error is dismissed.

Opinion of the Court.

CHAPPELL CHEMICAL AND FERTILIZER COMPANY v. SULPHUR MINES COMPANY (No. 2).

ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND.

No. 92. Argued December 16, 1898.

Decided January 9, 1899.

The

The Court of Appeals of Maryland, in dismissing this case, said: defendant, long after the time fixed by the rule of court, demanded a jury trial, and, without waiting for the action of the court upon his motion, and indeed before there was any trial of the case upon its merits and before any judgment, final or otherwise, was rendered, this appeal was taken from what the order of appeal calls the order of court of the 6th of February, 1896, denying the defendant the right of a jury trial; but no such order appears to have been passed. On the day mentioned in the order of appeal there was an order passed by the court below fixing the case for trial, but there was no action taken in pursuance of such order until subsequent to this appeal. There is another appeal pending here from the orders which were ultimately passed." Held, that no Federal question was disposed of by this decision.

THIS cause was argued with No. 91, the preceding case. The case is stated in the opinion.

Mr. Thomas C. Chappell for plaintiff in error.

Mr. James M. Ambler and Mr. Randolph Barton for defendant in error. Mr. Skipwith Wilmer and Mr. Randolph Barton, Jr., were on their brief.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This is a writ of error to the Court of Appeals of the State of Maryland to review a judgment made by it, and which is hereafter set out.

The action was at law for the recovery of eight thousand dollars for money payable, goods sold and work done, and materials furnished by defendants in error (plaintiffs in the court below) to plaintiff in error, (defendant in the court below,) and was brought in one of the city courts of Baltimore,

Opinion of the Court.

Maryland. To the declaration a plea was filed February 12, 1895, averring that the defendant was never indebted and never promised as alleged. On January 13, 1896, under the Maryland practice, upon the suggestion of the defendant (plaintiff in error) that it could not have a fair trial, the case was "transmitted" to the Supreme Court of Baltimore, Mary

land.

The record contains a number of motions and exceptions to the rulings on the motions. One of these exceptions was that the ruling of the court deprived plaintiff in error of a jury trial under a law of Maryland and the rules of court made in accordance therewith, which law and rules plaintiff in error alleges are repugnant to the Constitution of the United States. Another objection was to an order made on the 6th of February, 1896, requiring plaintiff in error to employ new counsel, the cause under the practice of the court having been peremptorily set for trial on the 20th of February, 1896, after having been twice postponed for the alleged sickness of counsel. An appeal was entered from this order and perfected. The Court of Appeals dismissed it December 3, 1896, saying: "The appeal in this case having been prematurely taken, the motion to dismiss it must prevail.

"The defendant, long after the time fixed by the rule of court, demanded a jury trial, and without waiting for the action of the court upon his motion, and indeed before there was any trial of the case upon its merits and before any judgment, final or otherwise, was rendered, this appeal was taken from what the order of appeal calls the order of court of the 6th of February, 1896, denying the defendant the right of a jury trial; but no such order appears to have been passed. On the day mentioned in the order of appeal there was an order passed by the court below fixing the case for trial, but there was no action taken in pursuance of such order until subsequent to this appeal. There is another appeal pending here from the orders which were ultimately passed.

66

Appeal dismissed."

No Federal question was disposed of by this decision.

Writ of error dismissed.

Opinion of the Court.

CHAPPELL CHEMICAL AND FERTILIZER COMPANY v. SULPHUR MINES COMPANY (No. 3).

ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND.

Argued December 16, 1898. - Decided January 9, 1899.

The claim made in the court below that the provision in the constitution of Maryland which abridged the right of trial by jury in the courts of the city of Baltimore without making a similar provision for the counties of the State denied to litigants of the city the equal protection of the laws, is not tenable.

The record does not contain the petition for the removal of this case from the state court to the Circuit Court of the United States, nor disclose the grounds on which it was founded, and this court does not pass upon the question whether the state court lost jurisdiction by reason of it.

THIS cause was argued with Nos. 91 and 92, preceding it. The case is stated in the opinion.

Mr. Thomas C. Chappell for plaintiff in error.

Mr. James M. Ambler and Mr. Randolph Barton for defendant in error. Mr. Skipwith Wilmer and Mr. Randolph Barton, Jr., were on their brief.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This is an action at law brought by plaintiff in error against defendant in error and another, for causes growing out of the matters sued on in No. 92. Here, as in No. 92, there was a series of motions which we do not think it is necessary to notice.

The case, on the appeal of plaintiff in error, reached and was passed on by the Court of Appeals of the State, and to its judgment affirming that of the lower court this writ of error is directed.

The judgment must be affirmed.

Claims under the Constitution of the United States were set