When the validity of no treaty or statute of, or authority
exercised under, the United States, nor of a statute of, or
authority exercised under, any state is drawn in question by a
state court, it is essential to the maintenance of jurisdiction
here that it should appear that some title, right, privilege, or
immunity under the Constitution or laws of the United States was
specially set up or claimed there, and that the decision of the
highest
Page 158 U. S. 181
court of the state in which such decision could be had was
against the title, right, privilege, or immunity so set up or
claimed, and in that regard, certain propositions must be regarded
as settled:
1. That the certificate of the presiding judge of the state
court as to the existence of grounds upon which the interposition
of this court might be successfully invoked, while always regarded
with respect, cannot confer jurisdiction to reexamine the judgment
below.
2. That the title, right, privilege, or immunity must be
specially set up or claimed at the proper time and in the proper
way.
3. That such claim cannot be recognized as properly made when
made for the first time in a petition for rehearing after
judgment.
4. That the petition for the writ of error forms no part of the
record upon which action is taken here.
5. Nor do the arguments of counsel, though the opinions of the
state courts are now made such by rule.
6. The right on which the party relies must have been called to
the attention of the court in some proper way, and the decision of
the court must have been against the right claimed.
7. Or at all events it must appear from the record by clear and
necessary intendment that the federal question was directly
involved so that the state court could not have given judgment
without deciding it -- that is, a definite issue as to the
possession of the right must be distinctly deducible from the
record before the state court can be held to have disposed of such
federal question by its decision.
Tested by these principles, it is quite apparent that this writ
of error must be dismissed.
Motion to dismiss. This was an action at law brought by Arthur
A. Denny and F. X. Prefontaine, as executors of the last will and
testament of James Crawford, deceased, against William P. Sayward,
in the Superior Court of Kitsap County, State of Washington, to
recover moneys paid by James Crawford on a contract which he had
executed as surety for William P. Sayward as principal. The
complaint alleged that the contract referred to was executed by
Sayward as principal, by and through his authorized agent, George
A. Meigs, and by George A. Meigs, James Crawford, and William
Harrington as sureties, and set it forth in
haec verba, it
being an agreement for the purchase of logs of Dingwall and Haller,
to be used in certain lumber mills belonging to Sayward. It was
further averred that Crawford and Harrington had no interest in the
contract, and executed it only as sureties for the accommodation of
Sayward; that afterwards Haller commenced an action thereon for the
purchase price of the logs against Crawford, Harrington, Meigs, and
Sayward; that
Page 158 U. S. 182
Crawford and Harrington appeared in and defended the action, as
did Meigs, and such proceedings were had therein that, about
November 3, 1882, Haller recovered judgment against Crawford,
Harrington, and Meigs in the sum of $15,248.01 with costs;
"that said Sayward was never served with process in said action,
and never appeared in said action; that at all times during the
pendency of said action, he was outside of the State (then
Territory) of Washington, and was out of the jurisdiction of said
court;"
that Crawford died leaving a last will and testament in which
plaintiffs were named as executors; that the will was duly admitted
to probate, and plaintiffs appointed and qualified and entered upon
their duties as executors; that thereafter, Haller presented his
claim to said executors as a judgment creditor, and the executors
were compelled to pay, and did pay, out of Crawford's estate for
the use of defendant Sayward the sum of $9,200, to apply, and it
was applied, to the payment of the judgment; that Sayward had never
repaid said sum of money to Crawford or his estate, or any part
thereof, and it remained due with interest; that at the time the
judgment was obtained, and the time the cause of action accrued
against Sayward, he was out of and absent from the State of
Washington, and at no time since the cause of action accrued, until
within a year prior to the commencement of the action, had Sayward
returned or come into the State of Washington. To this complaint
defendant demurred on the ground that it did not "state facts
sufficient to constitute a cause of action." The demurrer was
overruled, and defendant excepted, and thereupon answered, denying
the allegations of the complaint except that he was the owner of
the mills for the manufacture of lumber mentioned therein; averred
that he was never served with process in the original action nor
appeared therein; and pleaded as affirmative defenses the statute
of limitations and that the executors were discharged from their
trust and were not competent to bring the action. The cause was
tried by a jury and, upon the verdict, the executors obtained a
judgment against Sayward for the sum of $17,680.25, whereupon he
appealed to the Supreme Court of the State of
Page 158 U. S. 183
Washington, alleging errors, and the judgment was by that court
affirmed. The case is reported, in advance of the official series,
39 Pac. 119. A writ of error from this court was allowed by the
Chief Justice of Washington, and a motion to dismiss was
submitted.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
As the validity of no treaty or statute of, or authority
exercised under, the United States, nor of a statute of, or
authority exercised under, any state, was drawn in question, it is
essential to the maintenance of our jurisdiction that it should
appear that some title, right, privilege, or immunity under the
Constitution or laws of the United States was specially set up or
claimed in the state court, and that the decision of the highest
court of the state in which such decision could be had was against
the title, right, privilege, or immunity so set up or claimed. And
in that regard, certain propositions must be regarded as settled.
1. That the certificate of the presiding judge of the state court
as to the existence of grounds upon which our interposition might
be successfully invoked, while always regarded with respect, cannot
confer jurisdiction upon this Court to reexamine the judgment
below.
Powell v. Brunswick County, 150 U.
S. 433,
150 U. S. 439,
and cases cited. 2. That the title, right, privilege, or immunity
must be specially set up or claimed at the proper time and in the
proper way.
Miller v. Texas, 153 U.
S. 535;
Morrison v. Watson, 154 U.
S. 111,
154 U. S. 115,
and cases cited. 3. That such claim cannot be recognized as
properly made when made for the first time in a petition for
rehearing after judgment.
Loeber v. Schroeder,
149 U. S. 580,
149 U. S. 585,
and cases cited. 4. That the petition for the writ of error forms
no part of the record upon which action is taken here.
Butler
v. Gage, 138 U. S. 52, and
cases cited. 5. Nor do the arguments of counsel, though the
opinions of the
Page 158 U. S. 184
state courts are now made such by rule.
Gibson v.
Chouteau, 8 Wall. 314;
Parmalee
v.Lawrence, 11 Wall. 36;
Gross v.
U.S. Mortgage Co., 108 U.
S. 477,
108 U. S. 484;
United States v. Taylor, 147 U. S. 695,
147 U. S. 700.
6. The right on which the party relies must have been called to the
attention of the court in some proper way, and the decision of the
court must have been against the right claimed.
Hoyt v.
Shelden, 1 Black 518;
Maxwell v.
Newbold, 18 How. 515. 7. Or, at all events, it must
appear from the record by clear and necessary intendment that the
federal question was directly involved, so that the state court
could not have given judgment without deciding it -- that is, a
definite issue as to the possession of the right must be distinctly
deducible from the record before the state court can be held to
have disposed of such federal question by its decision.
Powell
v. Brunswick County, 150 U. S. 433,
150 U. S.
400.
Tested by these principles, it is quite apparent that this writ
of error must be dismissed.
The errors assigned question the various rulings of the trial
court, which were passed on and sustained by the supreme court, but
of these reference need be made to but two, namely in respect of
the admission in evidence of the judgment recovered by Haller
against Crawford and the exclusion of evidence offered to show that
Sayward was not liable to Haller to the extent of the judgment
recovered by Haller against Crawford. The contention is that the
result of the rulings and decisions of the trial court in these
respects, as affirmed by the supreme court, was to hold plaintiff
in error conclusively bound by the judgment rendered against
Crawford in an action "in which he was not a party and of which he
had no notice," and that this was in effect to deprive him of his
property without due process of law, or to deny him the equal
protection of the laws, and amounted to a decision adverse to the
right, privilege, or immunity of plaintiff in error, under the
Constitution, of being protected from such deprivation or
denial.
But it nowhere affirmatively appears from the record that such a
right was set up or claimed in the trial court when the
Page 158 U. S. 185
demurrer to the complaint was overruled, or evidence admitted or
excluded, or instructions given or refused, or in the supreme court
in disposing of the rulings below.
The supreme court treated the subject of the admission of the
judgment as follows:
"The next contention grows out of the action of the court in
admitting in evidence a copy of the judgment upon which the money
sought to be recovered had been paid by plaintiffs. The reason for
objecting to the introduction of this copy was that the defendant
had not been served with process in the action, and could not be
affected by the judgment. Authorities have been cited to establish
the doctrine that one not served with process in an action is not
bound by a judgment rendered therein, but they are none of them in
point under the circumstances of this case. A judgment against the
sureties, rendered without their consent and especially after a
defense made in good faith by them, is at least
prima
facie sufficient to authorize them to recover of their
principal the amount which they have been called upon to pay
thereon, and if the principal had knowledge of the pendency of the
action, even though he was not served with process therein, the
judgment rendered against the sureties, without fault on their
part, would be conclusive in an action by them to recover money
which they had paid on account of such judgment."
And, as to the exclusion of evidence complained of, the supreme
court said:
"The foundation of the next allegation of error is stated by the
appellant as follows: 'In a suit by surety for subrogation,
principal entitled to use every legal defense.' This is not an
exact statement of the principle which it is claimed was negatived
by the court upon the trial. The plaintiffs did not seek a
technical subrogation to the rights of the plaintiff in the
original action; they sought an independent recovery of money,
which they had paid on account of the defendant, and introduced the
judgment only for the purpose of showing that such payment was not
a voluntary one. As stated before, the weight of authority is to
the effect that a judgment like the one sought to be introduced in
the case at bar is at least
Page 158 U. S. 186
prima facie evidence as against the principal, and that
it is conclusive unless some collusion or fraud upon the part of
the surety is shown. The testimony offered by the defendant did not
tend to show any such fraud or collusion, and if it did, it was not
competent under the pleadings. There was no sufficient allegation
of fraud or collusion on the part of the sureties in the answer.
Besides, we think the evidence disclosed a state of facts from
which it could be fairly presumed that defendant had notice of the
pendency of the former suit."
We are not called on to revise these views of the principles of
general law considered applicable to the case in hand. It is enough
that there is nothing in the record to indicate that the state
courts were led to suppose that plaintiff in error claimed
protection under the Constitution of the United States from the
several rulings, or to suspect that each ruling as made involved a
decision against a right specially set up under that instrument.
And we may add that the decisions of state tribunals in respect of
matters of general law cannot be reviewed on the theory that the
law of the land is violated unless their conclusions are absolutely
free from error.
Writ of error dismissed.
