To bring a case here under the 25th section of the Judiciary Act
on the ground that the provision of the Constitution which ordains
that "full faith and credit shall be given in each state to the
public acts, records, and judicial proceedings of every other
state" has been violated by a refusal of the highest state court to
give proper effect to a judicial record of another state, it is
necessary that it appear that the record have been authenticated in
the mode prescribed by the Act of May 26, 1790,
"to prescribe the mode in which the public acts, records, and
judicial proceedings in each state shall be authenticated, so as to
take effect in every other state."
The Constitution of the United States ordains "that full faith
and credit shall be given in each state to the public acts,
records, and judicial proceedings of every other state," and also
ordains that "the Congress may by general laws prescribe the manner
in which such acts, records, and proceedings shall be proved, and
the effect thereof."
Congress in execution of this power thus given to it, by act of
May 26, 1790, [
Footnote 1]
passed a statute prescribing the mode in which "the records and
judicial proceedings of the courts of any state shall be
authenticated, so as to take effect in every other state." This
statute enacts:
"That the records and judicial proceedings of the courts of any
state shall be proved or admitted in any other court within the
United States by the attestation of the clerk and the seal of the
court annexed, if there be a seal, together with a certificate of
the judge, chief justice, or presiding magistrate, as the case may
be, that the said attestation is in due form."
The act then proceeds:
"And the said records and judicial proceedings,
authenticated as aforesaid, shall have such faith and
credit given to them in every court within the United States as
they have by law or
Page 81 U. S. 239
usage in the courts of the state from whence the said records
are or shall be taken."
In this state of the law, one
William A. Ballard, as
administrator of William Ballard, deceased, brought suit against a
certain Caperton in the state Circuit Court of Monroe County, West
Virginia -- a county prior to about the 20th of June, 1863, of
Virginia, but after that date a county of West Virginia -- for a
tortious seizure, sale, and destruction of the property of the
intestate. [
Footnote 2] The
letters of administration were issued to the plaintiff by the
Circuit Court of Monroe County on the 25th of April, 1866, after
the suppression of the rebellion. In bar of the suit, the defendant
pleaded that on the 16th of February, 1863, letters had been duly
granted by the County Court of the same county on the same estate
to one
John C. Ballard, who properly qualified as
administrator. To this it was replied that the letters were granted
by a court in rebellion, and void.
On the trial, the plaintiff produced evidence to show that he
was regularly appointed administrator by the Monroe County Circuit
Court on the 25th of April, 1866. The defendant, on the other hand,
in order to sustain his plea, offered in evidence an order from the
county court of the same county, dated February 16, 1863, reciting
that administration of the estate of William Ballard, deceased, is
granted to
John C. Ballard, who had made oath &c., and
"that letters in due form are granted to him." This order, so far
as the record shows, was certified in no other manner than by the
teste of the clerk, one Lewis Callaway. There was not even a seal
attached to the certificate. The defendant then offered evidence
that he had paid to
this administrator the net proceeds of
the alleged tortious seizure and sale of the decedent's property,
and he requested the court
Page 81 U. S. 240
to charge that if the administration of the plaintiff's
intestate had been granted to
John C. Ballard by the
County Court, composed of justices who held their commission under
the authority of the Commonwealth of Virginia issued to them in
1860, such appointment was sufficient to authorize
him to
act as such administrator, and that there could be no other
appointment subsequent thereto until the original appointment was
set aside by a court of competent jurisdiction. The court refused
so to charge, but on the contrary charged that if on the 16th of
February, 1863, when the appointment of
John C. Ballard
was made by the Monroe County Court, that court was in rebellion
against the government of the United States and was composed of
justices who were then engaged in giving aid and comfort to the
rebellion by levying supplies &c., its proceedings were void,
and that their appointment to John C. Ballard gave no authority,
and that it was not necessary to set aside an invalid order of such
a court in order to give effect to the plaintiff's appointment,
which was made by a competent tribunal.
Judgment having been given against the defendant, he took the
case to the Supreme Court of Appeals of West Virginia, where the
instruction was declared to have been proper and the judgment was
affirmed.
The judgment was now brought here by the defendant, Caperton, on
an assumption that he could properly bring it, on the case stated,
under the 25th section of the Judiciary Act, quoted
supra,
pp.
81 U. S. 5-6.
Page 81 U. S. 241
MR. JUSTICE DAVIS delivered the opinion of the Court.
This Court has repeatedly declared that it is only under the
25th section of the Judiciary Act that it takes cognizance of error
committed in the highest courts of a state. There must be a federal
question, within the terms of that section, to enable us to review
the decision of a state tribunal. Is there such a question
here?
It is argued that a constitutional provision has been
disregarded, because the courts in West Virginia did not give
proper effect to the letters granted in 1863 by the court of a
county which at that time formed a part of Virginia, but which,
when the subsequent letters were granted, and this suit was tried,
had become incorporated into West Virginia.
It may be conceded that the decision on this subject could be
reviewed, if the record showed a state of case in which this
provision of the Constitution was applicable, but in the absence of
this, we cannot consider the point, whatever may be the hardship of
this particular suit. The same constitutional provision which
ordains "that full faith and credit shall be given in each state to
the public acts, records, and judicial proceedings of every other
state" also ordains that "the Congress may by general laws
prescribe the manner in which such acts, records, and proceedings
shall be proved, and the effect thereof." Congress acted on this
subject, and on the 26th of May, 1790, prescribed the manner in
which judicial records, and the proceedings of the courts of any
state shall be authenticated, so as to be considered proved and
admitted in any other court in the United States. This act declares
further that the said records and judicial proceedings,
authenticated as aforesaid, shall have such faith and
credit given to them in every other court within the United
Page 81 U. S. 242
States as they have by law or usage in the courts of the state
from whence the said records are or shall be taken. The mode of
authentication prescribed by the law requires the attestation of
the clerk with his seal attached and the certificate of the judge
that the attestation was in due form. If a judicial proceeding has
the effect of record evidence in the courts of the state from which
it is taken, it has the same effect in the courts of every other
state. To receive this conclusive effect, however, it must not only
be pleaded but proved in conformity with the act of Congress on the
subject. Unless this is done, there is nothing for this Court to
act upon.
It is only through the instrumentality of the statute that the
clause of the Constitution which the plaintiff in error relies on
can be invoked for his protection. Legislation was required to make
the constitutional provision effective, and this having been done
by a general law, it requires no argument to show that a party
cannot claim that a right under the Constitution and law has been
denied him by a state court unless he has used the means for his
protection which the statute directs.
This the plaintiff in error failed to do. He relied for his
justification upon letters of administration granted in 1863 by the
County Court of Monroe County, while it was a part of Virginia, but
did not furnish the legal evidence required to establish the
existence of the record. It would seem that in Virginia, the
tribunals entrusted with probate business were designated by the
name of county courts, while in West Virginia the circuit courts of
each county were empowered to grant letters of administration.
Doubtless the County Court records of Monroe County were
transferred to the custody of the clerk of the circuit court after
West Virginia was admitted into the Union. This is fairly inferable
from the fact that the only evidence offered to the grant of
letters in 1863 was the transcript of the records of the county
court, under the hand of Lewis Callaway, styling himself Clerk of
the Monroe County Circuit Court.
This proof, if received by the state court as sufficient to
Page 81 U. S. 243
establish the record of a judicial proceeding in Monroe County,
while a part of Virginia, lacked the formalities required by the
act of Congress. The seal of the County Court was wanting as well
as the certificate of the presiding magistrates. It will not do to
say that they could not be procured on account of the anomalous
condition in which the records of the county were placed by the
change of jurisdiction. There is nothing to show that any effort
was made to supply the omission. In fact, the case does not seem to
have been tried in reference to the conclusive effect of the
judgments of one state in the courts of another. It rather seems to
have been tried on the theory that the judgment was void because
the court granting the letters was disloyal. Indeed, neither in the
pleading nor proof is the particular provision of the Constitution
on this subject relied on. It is certainly not set up in words, nor
from the pleading itself could an inference even be drawn that
Monroe County in 1866 was not in the same state as in 1863. It is
only through the history of the country that we ascertain this
fact.
It may be that the attention of the court below was called to
the conclusive effect of judicial proceedings under the
Constitution and laws of Congress, but if so, there is nothing in
the record to show it. It is doubtless unfortunate that the
plaintiff in error did not in proper terms set up the right he now
claims and conform his proof to the requirements of the law. If he
had done so and the decision had been adverse to him, he could have
had it reviewed here, although the question would still arise
whether the constitutional provision concerning the effect of
judgments of different states would be applicable on account of the
transfer of Monroe County to the jurisdiction of West Virginia. As
the case is, the federal question is not presented at all, and the
writ of error must be
Dismissed for want of jurisdiction.
[
Footnote 1]
1 Stat. at Large 122.
[
Footnote 2]
The defendant in this case was the same one as in the preceding
case, and his acts were done, here as there, as provost marshal of
the Confederate government. This case accordingly had certain
points in common with the preceding case, but as those points had
been already decided when the opinion in this one was given, the
court only noticed now one point not presented by that case.
