Of course, if the state court renders two separate judgments, one reviewable by appeal and the other only by certiorari, the latter should be taken up separately; if not, the Court will treat that part of the appeal papers dealing with the nonappealable judgment as a petition for a writ of certiorari, pursuant to §2103. Cantwell v. Connecticut, 309 U. S. 626, 310 U. S. 296.

D. Final judgments and decrees

The remaining jurisdictional factors are common to all cases in state courts as to which Supreme Court review is sought, whether by appeal or certiorari. First is the requirement mentioned in 28 U.S.C. §1257 that there be a "final" judgment or decree by the highest state court.

In general, it may be said that the state court judgment must be final in two respects to be within the Supreme Court's appellate jurisdiction. "It must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court." Market Street R. Co. v. Railroad Commission, 324 U. S. 548, 551.

But there is no self-enforcing formula which defines when a judgment is final. The Court has therefore been forced to devise a variety of principles which help in giving direction and emphasis to the search for finality from case to case. These considerations are not abstractions but have very real reference to the philosophy underlying the requirement of finalitynamely, harmonious relationships of a federal-state character. They are designed so that the Court can avoid piecemeal interference with state court proceedings and can refrain from as

* See Crick, The Final Judgment As a Basis for Appeal, 41 Yale L. J. 539 (1932); Boskey, Finality of State Court Judgments Under the Federal Judicial Code, 43 Col. L. Rev. 1002 (1943).

serting its jurisdiction until a controversy in the state court shall have been finally resolved. See Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62, 67-69; Radio Station WOW v. Johnson, 326 U. S. 120, 123-24.

The following are the considerations which are relevant to the determination of the jurisdictional issue of finality:

Finality as of record

The Supreme Court insists that the record contain the final judgment of the state court. Otherwise the appeal will be dismissed or the petition for a writ of certiorari denied. Gersch v. Chicago, 226 U. S. 451. Of course, if the omission is unintentional the record may be supplemented to include the judgment. Or if the state court does not render a final judgment until after the Supreme Court has denied review for want of a final judgment, the removal of the deficiency can be brought to the Court's attention through a petition for rehearing and, if other requirements have been met, review may thereafter be had.

Sources for testing finality

The Supreme Court will examine "both the judgment and the opinion as well as other circumstances which may be pertinent" (Gospel Army v. Los Angeles, 331 U. S. 543, 548) in resolving the issue of finality.

But the Court has not always felt itself so uninhibited in this respect. At one time, the Court took the narrow view that finality was to be determined solely from the face of the judgment. Houston v. Moore, 3 Wheat. 433; Bruce v. Tobin, 245 U. S. 18. The result under this approach was that a judgment remanding the case to the trial court for further proceedings in conformity with the accompanying opinion was considered not final even though the accompanying opinion

made final disposition of all issues. Haseltine v. Central Nat. Bank., 183 U. S. 130. In 1934, however, the Court took the more liberal position that the judgment and the accompanying opinion were to be viewed as a unit in passing upon the finality of the judgment. Clark v. Williard, 292 U. S. 112. This position has now been expanded so that the Court will look not only to the judgment and opinion but also, where necessary, to any other pertinent factor within or without the record. Department of Banking v. Pink, 317 U. S. 264, 268; Richfield Oil Corp. v. State Board, 329 U. S. 69, 72; Gospel Army v. Los Angeles, 331 U. S. 543, 548.

The most pertinent source of inquiry as to finality, outside of the judgment and opinion, is the law of the state wherein the judgment was rendered. An inquiry in that direction is usually initiated at the behest of a litigant. The Court cannot be expected to take the time to make such an inquiry on its own motion in all the cases in which finality problems are involved. The litigant is therefore well advised to discuss the applicable state law whenever it will aid in determining the finality of the judgment. The state law may reveal a finality which is not apparent from the face of the judgment or from the opinion. This matter should be raised in the petition for certiorari or in the Jurisdictional Statement, although it is sometimes not presented until a petition for rehearing is filed after the Court has denied review because of the apparent jurisdictional defect. See Brady v. Terminal Railroad Ass'n, 302 U. S. 678; Brady v. Southern R. Co., 319 U. S. 777.

But it must be remembered that the ultimate test of finality is formulated by the Supreme Court, not by the law of the state wherein the judgment is rendered. As stated in Department of Banking v. Pink, 317 U. S. 264, 268, "the test is not whether under local rules of practice the judgment is denominated final ... but rather whether the record shows that the

order of the appellate court has in fact fully adjudicated rights and that that adjudication is not subject to further review by a state court." And so, since "the designation given the judgment by state practice is not controlling" (Richfield Oil Corp. v. State Board, 329 U. S. 69, 72), state law can do no more than reveal the incidents and effect of the judgment in its local context. Whether that is sufficient to establish the finality essential to the exercise of the Supreme Court's jurisdiction is a matter for the Court itself to determine. See Cotton v. Hawaii, 211 U. S. 162, 170-71; Cole v. Violette, 319 U. S. 581, 582.

Extent of finality

The state court judgment must be final as to all parties and issues. Where there are a number of defendants to the same cause of action, the record must show that the judgment concludes the controversy as to all of them. Meagher v. Minnesota Threshing Mfg. Co., 145 U. S. 608, 611. And it must be clear that definitive disposition has been made of all the legal and factual issues in the case, not just the important ones or the federal ones. Thus "the requirement of finality has not been met merely because the major issues in a case have been decided and only a few loose ends remain to be tied up-for example, where liability has been determined and all that needs to be adjudicated is the amount of damages." Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62, 68. See also Bruce v. Tobin, 245 U. S. 18; Mississippi Central R. Co. v. Smith, 295 U. S. 718. Finality as to separable matters

The Supreme Court considers as final for its jurisdictional purposes a state court judgment which conclusively disposes of a matter distinct from the general subject of the litigation and affecting only the parties to the particular controversy. Clark v. Williard, 292 U. S. 112, 117-19; cf. Cohen v. Beneficial Loan Corp., 337 U. S. 541, 545-7. In this type of situation, review need not wait for determination of the remainder of

the litigation. Indeed, such a delay might foreclose Supreme Court review of the separable matter unless the state law were such as to permit one to renew or postpone consideration of such matter by the highest state court until the primary litigation was before it. See Hill v. Chicago & Evanston R. Co., 140 U. S. 52, 54. Thus where liquidation proceedings are incomplete, a judgment finally determining issues relative to an execution levied by an intervening creditor has been held final and reviewable by the Supreme Court. Clark v. Williard, supra. And a judgment dismissing a cross-complaint concerning the same subject matter as the complaint is not final if the complaint has not received a conclusive determination, whereas such a judgment of dismissal is final where the complaint and cross-complaint concern unrelated subjects. See Bowker v. United States, 186 U. S. 135.

Finality where further proceedings contemplated

The more difficult problems concerning finality arise in connection with those judgments of the highest state courts which contemplate some sort of further proceedings at the trial court level. The most obvious non-final judgment of this character is one which orders a new trial following final disposition of the legal issues at stake. Cincinnati Street R. Co. v. Snell, 179 U. S. 395; Scott v. Booth, 253 U. S. 475; Laclede Gas Light Co. v. Public Service Comm., 304 U. S. 398. On the other hand, if nothing more than a ministerial act remains to be done, such as the entry of a judgment upon a mandate, the decree is regarded as concluding the case and is immediately reviewable. See Board of Commissioners v. Lucas, 93 U. S. 108; Mower v. Fletcher, 114 U. S. 127; Rio Grande Western R. Co. v. Stringham, 239 U. S. 44; Cole v. Violette, 319 U. S. 581; Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62, 68. In between these two extremes is a penumbral area wherein the problem of appealable finality is not always easy of solution.