A writ of error will not lie to review an order of the highest
court of a state overruling a motion to quash a
fieri
facias. The refusal to quash a writ is not a final judgment
within the contemplation of the Judiciary Acts of the general
government.
It is settled that the attempt for the first time to raise a
federal question after judgment and on petition for rehearing comes
too late. The motion in this case, to quash the
fieri
facias on the ground that the order of the court directing it
to issue was void stands upon no better footing in such respect
than a petition for rehearing would have done.
The case is stated in the opinion.
Page 149 U. S. 581
MR. JUSTICE JACKSON delivered the opinion of the court.
This writ of error to the Court of Appeals of the State of
Maryland is brought to review and reverse a judgment of that court
affirming an order of Circuit Court No. 2, of Baltimore City,
overruling a motion of the plaintiff in error to quash a writ of
fi. fa. issued against him in pursuance of a decree
entered in the Court of Appeals in April, 1892. The defendant in
error moves to dismiss the cause for want of jurisdiction. This
motion is based on two grounds,
viz., first, that a writ
of error will not lie to an order overruling a motion to quash an
execution, because it is not a final judgment or decree within the
meaning of the federal statutes; secondly, that no federal question
is involved in the case.
It appears from the record that the defendant in error, J. Henry
Schroeder, as administrator of Catherine Loeber, deceased, on July
12, 1890, filed his bill of complaint in Circuit Court No. 2, of
Baltimore City, against the plaintiff in error, John Loeber, in
which it was alleged that the plaintiff's intestate, in 1882,
loaned to her husband the sum of $8,000, being a part of her
separate estate, on condition that he should pay said sum of money,
on her death, to her children, and that said John Loeber, who was
the husband of the intestate, agreed to take said money upon that
condition as a loan from his wife. The complaint further charged
that the defendant, John Loeber, had never repaid said sum of
money, and that he denied that the same was a part of the estate of
his deceased wife, and prayed for an order of the court directing
and requiring that he should bring said money into court, to be
invested in the name of his deceased wife's children; that the same
might be declared a lien upon property described in the bill, which
had been improved with the fund borrowed, and for such further
relief as the nature of complainant's case might require.
The defendant answered this bill, and denied that his wife had
ever loaned him the amount stated in the bill, or any part thereof,
and denied all indebtedness to the wife, or her estate.
Page 149 U. S. 582
He further set up in his answer that the complainant had failed
to make proper parties to his bill, and that no case was stated
therein of which the court could take jurisdiction.
On the issues thus presented, proofs were taken, and upon
hearing of the case, May 21, 1891, Circuit Court No. 2, of
Baltimore City, being of the opinion that the complainant had no
interest whatever in the matter controversy, dismissed the bill
without prejudice to any proceedings that proper parties might be
advised to take. From this decree the complainant prosecuted an
appeal to the Court of Appeals of the state, which, on January 28,
1892, reversed the decree of the circuit court and entered a decree
in favor of the complainant, as administrator of Mrs. Loeber, for
$8,000 and costs, which amount said court found, from the
testimony, Loeber had received from his wife, and undertook to
invest for her benefit in certain houses which belonged to him. The
Court of Appeals, while holding that the undertaking to invest the
money in certain specified property was a contract within the
fourth section of the statute of frauds, and for that reason could
not be specifically performed, nevertheless a court of equity ought
to give relief by decree for the amount of money which he had
received from his wife. A decree was accordingly entered against
Loeber for the sum of $8,000. Subsequently, after entry of that
decree, Loeber moved the Court of Appeals for a reargument of the
case on the grounds that the bill alleged a loan from Mrs. Loeber
to him upon the undertaking and promise to pay the same to her
children, but alleged no other contract or undertaking on his part;
that the complainant failed to prove the alleged contract, but did
prove, in the opinion of the court, another contract,
viz., that "John Loeber undertook to invest his wife's
money for her benefit in certain houses which belonged to him," and
as that contract could not be enforced, the court thereupon
decreed, because of the statute of frauds, a repayment of the money
received by him, and it was claimed that this latter contract, on
which this decree was based, was not alleged in the bill, and that
the bill stated no case within the jurisdiction of the court below
or of the Court of Appeals.
Page 149 U. S. 583
This motion for reargument was overruled, the Court of Appeals
holding that the case was within the jurisdiction of the court
below, and that, whatever variance there may have been between the
allegations of the bill and the proof in the case, the Court of
Appeals was authorized, under the statutes and decisions of the
state, which were specially cited and referred to, to enter a
decree according to the testimony, without regard to the special
averments of the bill. The Court of Appeals rested its action and
decision mainly upon the fifth section of the act of 1832, forming
the thirty-fourth section of Article V of the code, which provides
that,
"On an appeal from a court of equity, no objection to the
competency of a witness, or to the admissibility of evidence, or to
the sufficiency of the bill or petition, or to any account stated
or reported in said cause shall be made in the Court of Appeals
unless it shall appear by the record that such objection was made
by exceptions filed in the court from which said appeal shall have
been taken."
The testimony in the case was not excepted to, and the appellate
court, in its construction of this provision of the code, held that
it was bound to give effect to the testimony, the court saying:
"It is no matter whether the averments of the bill cover the
case proved in evidence or not. We are obliged to decree according
to the matters established by the proofs. The statute [quoted] has
been frequently construed, and the practice under it is well
established."
After citing various authorities construing said section, the
court proceeds:
"It is therefore very clear that it was our duty to consider the
evidence and make such a decree as it required, without regard to
the averments of the bill."
The court further held that the administrator succeeded to the
right of action on personal contracts made with his intestate, and
had the right to sue upon the one in question before Circuit Court
No. 2, of Baltimore City.
The Court of Appeals, having denied for these reasons a
rehearing, on April 28, 1892, issued its order for a
fieri
facias against Loeber for the amount decreed, returnable to
Circuit Court No. 2. On April 29, 1892, Loeber entered a motion
before said circuit court to quash this writ for the following
Page 149 U. S. 584
reasons: because the decree on which the writ issued and the
writ were void, because said writ would deprive the defendant of
his property without due process of law, and because it was issued
in violation of the Constitution of the United States, and
amendments thereto; because section 34 of Article V of the Code of
Public General Laws, insofar as it requires the Court of Appeals to
make their decision on the evidence without regard to the bill or
averments of the complaint, was contrary to the Constitution of the
United States and amendments thereto, and laws passed in pursuance
thereof, and was therefore void.
The Circuit Court No. 2, on May 21, 1892, dismissed this motion
and the petition of the defendant to quash the writ of
fieri
facias. From this order of dismissal Loeber prosecuted an
appeal to the Court of Appeals, which in November, 1892, affirmed
the order of the circuit court, holding that section 34 of Article
V of the Code of Public General Laws, under and by virtue of which
the Court of Appeals had made a decision on the evidence in the
case and had awarded the writ of
fi. fa., was not in
conflict with the Constitution or laws of the United States. From
the judgment of the Court of Appeals affirming the order of the
lower court, Loeber has prosecuted the present writ of error, and
assigned substantially as the grounds thereof that section 33 of
Article V of the Code of Public General Laws of the State of
Maryland is repugnant to the XIVth Amendment of the Constitution of
the United States, which declares that no state shall deprive any
person of his property without due process of law, and secondly
because said section 34, Article V of the Code of Public General
Laws is repugnant to the XIVth Amendment of the Constitution, which
declares that no state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States.
It is well settled that a writ of error will not lie except to
review a final judgment or decree of the highest court of the
state, and that it will not lie to an order overruling a motion to
quash an execution, because a decision upon the rule or motion is
not such a final judgment or decree in any suit as
Page 149 U. S. 585
is contemplated by the Judiciary Acts of the general government.
Refusal to quash a writ is not a final judgment.
Boyle
v. Zacharie, 6 Pet. 657;
McCargo v.
Chapman, 20 How. 556;
Early v.
Rogers, 16 How. 599;
Amis
v. Smith, 16 Pet. 314;
Evans v.
Gee, 14 Pet. 2.
It is also well settled by the decisions of this Court that the
attempt to raise for the first time a federal question in a
petition for rehearing, after judgment, comes too late.
Texas
& Pacific Railway Co. v. Southern Pacific Railroad Co.,
137 U. S. 48,
137 U. S. 54;
Butler v. Gage, 138 U. S. 52;
Winona & St. Peter Railroad v. Plainview, 143 U.
S. 371;
Leeper v. Texas, 139 U.
S. 462, and
Bushnell v. Crooke Mining & Smelting
Co., 148 U. S. 682.
The motion to quash the
fi. fa. in this case on the
grounds that the order of the Court of Appeals, which directed it
to be issued, was void for the reasons assigned stood upon no
better footing than a petition for rehearing would have done, and
suggested federal questions for the first time which, if they
existed at all, should have been set up and interposed when the
decree of the Court of Appeals was rendered on January 28,
1892.
If any federal question existed in the case, the attempt to
raise it came too late, but we are of opinion that no federal
question really exists in the case. The provisions of the statute
complained of by the plaintiff in error are manifestly not in
conflict with any provision of the Constitution of the United
States or of any law of Congress passed in pursuance thereof. The
said statute relates to a matter of state practice alone, and the
proper construction of that statute, upon well settled principles,
rested with the state courts. The question as to whether the
plaintiff's remedy was at law or in equity was a matter dependent
entirely upon local law, and involved no federal right
whatever.
We are therefore of opinion that the motion to dismiss for want
of jurisdiction should be sustained, and it is accordingly so
ordered.
Dismissed.