Where the highest court of a state affirmed the judgment of a
court below because no transcript of the record was filed in the
appellate court, such affirmance cannot be reviewed by this Court
under the twenty-fifth section of the Judiciary Act.
The intention of the parties to raise a constitutional question
is not enough. It must be actually raised and decided in the
highest court of the state.
In 1845, the Branch Bank of Mobile obtained a judgment in the
Circuit Court of Mobile county (state court) against Maria
Matheson, John Darrington, and Robert D. James, for the sum of ten
thousand five hundred and seventy-three dollars and eighty-two
cents.
On 29 May, 1846, the defendants sued out a writ of error,
returnable to December term, 1846, of the Supreme Court of the
State of Alabama. Billups Gayle, John Gayle, and Edward M. Ware
became their securities upon the appeal bond.
On 22 January, 1847, being a day of the December term, 1846, the
counsel of the Branch Bank filed a certificate of the clerk of the
court below, stating the judgment and writ of error, when it
appearing that no transcript of the record was filed, the Supreme
Court of the State of Alabama
Page 48 U. S. 261
affirmed the judgment of the court below, and also entered up
judgment against the securities in the appeal bond.
In April, 1847, the defendants sued out a writ of error, and
brought the case up to this Court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The record in this case is a very brief one. It states that a
certificate was filed in the Clerk's office of the Supreme Court of
the State of Alabama, from the Clerk of the Circuit Court for
Mobile county setting forth that a judgment had been obtained in
that court by the bank against the plaintiffs in error for the sum
of $10,573.82 and costs, from which judgment they had presented a
writ of error to the supreme court, and that this certificate
having been produced in the supreme court by the attorney for the
bank, and the transcript of the record in the circuit court not
having been filed, the writ of error was thereupon dismissed, and
the judgment of the circuit court affirmed. It is upon this
judgment that the writ of error has been presented to this
Court.
It appears from the argument against the motion that the
question intended to be raised here is whether the acts of the
State of Alabama creating a bank and branches are not in violation
of the tenth section of the first article of the Constitution of
the United States, which declares that "no state shall emit bills
of credit."
But in order to bring that question before this Court, it should
have been raised in the supreme court of the state and have been
there decided. There are many cases in the reports in which this
Court has so ruled. In this case, the supreme court of the state
dismissed the writ of error to the circuit court and affirmed its
judgment because the plaintiffs in error had not filed a transcript
of the record, and no question as to any matter of right in contest
in the suit was raised or decided. There is nothing, therefore, in
the record which this Court is authorized to review, and the writ
of error must be
Dismissed for want of jurisdiction.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Alabama and was argued by
counsel. On consideration whereof, and it appearing to the court
upon an inspection of the said transcript that
Page 48 U. S. 262
there is nothing in the record which this Court is authorized to
review, it is thereupon now here ordered and adjudged by this Court
that this cause be and the same is hereby dismissed for want of
jurisdiction.