To maintain a writ of error asserted under the third of the
classes of cases enumerated in section 709, Rev.Stat., the right,
title, privilege or immunity relied on must not only be specially
set up or claimed, but (1) at the proper time, which is in the
trial court whenever that is required by the state practice, as it
is in California, and (2) in the proper way, by pleading, motion,
exception, or other action, part or being made part, of the record,
showing that the claim was presented to the court.
Where it is claimed that the decision of a state court was
against a right, title, or immunity claimed under a treaty between
the United States and a foreign country and no claim under the
treaty was made in the trial court and it is a rule of practice of
the highest court of the state that it will not pass on questions
raised for the first time in that court and which might and should
have been raised in the trial court, the writ of error will be
dismissed.
The mere pleading of a decree in a foreign country or of a
statute of such country and the construction of the same by the
courts thereof do not amount to specifically asserting rights under
a treaty with that country.
Judicial knowledge cannot be resorted to to raise controversies
not presented by the record.
The raising of a point in this Court as to the faith and credit
which should be given judicial proceedings of a foreign country,
which ceased to be foreign before judgment was rendered in a state
supreme court, but was not brought to the attention of that court,
comes too late.
This is a writ of error to revise the judgment of the Supreme
Court of the State of California, affirming a judgment of the
Superior Court of the City and County of San Francisco in favor of
Alphonsine McGrew and against the Mutual Life Insurance Company of
New York. 132 Cal. 85.
Page 188 U. S. 292
The action was brought on a policy of insurance payable to
Alphonsine C. McGrew, and in the amended answer to the complaint,
the recovery of a decree of divorce was averred, and it was
alleged:
"That, under and by virtue of the Hawaiian law in force at the
time said decree of divorce was granted and now in force, it is
provided:"
"When a divorce is decreed for the adultery or other offense
amounting thereto, of the wife, the husband shall hold her personal
estate forever, and he shall hold her real estate so long as they
shall live, and if he shall survive her, and there shall be issue
of the marriage born alive, he shall hold her real estate for the
term of his own life, as a tenant by the curtsey; provided that the
court may make such reasonable provision for the divorced wife out
of any real estate that may have belonged to her, as it may deem
proper."
"That under and by virtue of the foregoing provision of law, and
decree of divorce, all rights of the said Alphonsine C. McGrew in
and to said policy of insurance did pass to the said Henri Golden
McGrew and become his absolute property, free and clear of any
claims of the said Alphonsine C. McGrew, plaintiff herein,
whatsoever."
The amended answer also averred that, after McGrew's death, one
Carter was duly appointed in Hawaii administrator of his estate,
and as such administrator, he commenced suit against the insurance
company in a circuit court of Hawaii on the policy of insurance;
recovered judgment October 15, 1895, for the full amount; that the
Supreme Court of Hawaii affirmed the judgment, and subsequently
denied an application for rehearing, and that the judgment was
thereafter paid.
The trial court made findings of fact as follows:
"1. On the 14th day of September, 1892, this defendant made,
executed, and delivered to Henri G. McGrew, a certain policy of
insurance, being the same policy mentioned in the complaint herein,
wherein and whereby the said defendant promised and agreed to pay
unto the plaintiff, Alphonsine McGrew, the sum of five thousand
dollars ($5,000.00), upon the death of the said Henri G. McGrew,
during the continuance of said policy of insurance, provided said
Alphonsine McGrew were living at the time of the death of said
Henri G. McGrew, and upon
Page 188 U. S. 293
acceptance of satisfactory proof of the death of said Henri G.
McGrew, during the continuance of said policy."
"2. Henri G. McGrew died on the 22d day of October 1894, in
Honolulu, Hawaiian Islands, and said plaintiff survived him."
"3. Said Henri G. McGrew, upon said 14th day of September, 1892,
and continuously and up to the time of his death, was a resident
of, and domiciled in, the Hawaiian Islands."
"4. On the 9th day of February, 1895, plaintiff presented to
said defendant satisfactory proof of the death of said Henri G.
McGrew, and demanded of said defendant the payment of the sum of
five thousand ($5,000.00) dollars, under and in accordance with the
terms of said policy of insurance, but defendant has never paid the
same, or any part thereof."
"5. Subsequent to the said 14th day of September, 1892, and
prior to the 8th day of February, 1894, the said Henri G. McGrew
became of unsound mind, and thereafter, upon due proceedings had,
Charles L. Carter, residing in the City of Honolulu, was duly
appointed the guardian of the person and estate of said Henri G.
McGrew, an incompetent person, and continued to hold such office of
guardian at the time of the filing of the libel of divorce, and the
proceedings thereunder hereinafter mentioned."
"6. On the 8th day of February, in the year 1894, Charles L.
Carter, as guardian and on behalf of Henri G. McGrew, an
incompetent person, filed in the Circuit Court of the First
Judicial Circuit of the Republic of Hawaii, which said court has
jurisdiction over said parties and over libels for divorce, a libel
praying for a divorce from said plaintiff on the ground of her
adultery, and thereafter, and on the 11th day of April, 1894, this
plaintiff, being then a resident of, and domiciled in, said
Hawaiian Islands, appeared in said action and contested the
same."
"7. On the 23d day of August, 1894, a decision was rendered, and
on the 24th day of August, 1894, a decree was signed in said cause
by the said circuit court dissolving the bonds of matrimony
theretofore existing between said Henri G. McGrew and this
plaintiff, upon the ground of the adultery of this plaintiff."
"8. On the 5th day of April, 1894, this plaintiff left the
Hawaiian
Page 188 U. S. 294
Islands with the intention of not returning to said islands, but
of coming to the State of California and of making her home in, and
permanently residing in, said state. And thereafter, and in due
course of her voyage from the Hawaiian Islands and in said month of
April, this plaintiff arrived in the State of California, and with
said intention above mentioned, thereupon took up her residence in,
and made her home in, said state, and with said intention has ever
since continuously remained in, and resided in, and made her home
in, said State of California, and on the 23d and 24th days of
August, 1894, was actually in, and residing in, said state, with
the intention above mentioned of permanently residing and making
her home in said State of California."
"9. Prior to said 5th day of April, 1894, this plaintiff had
been excluded by said Charles L. Carter, as such guardian, from the
home of said Henri G. McGrew, and was by him thereafter prevented
from returning, and has ever since and until the death of said
Henri G. McGrew been by him prevented from returning to the same,
and was, on said 5th day of April, excluded from said home by said
guardian."
"10. On said 5th day of April, 1894, this plaintiff had no home,
and has never since had a home in the Hawaiian Islands."
"[Findings 11, 12, 13, 14, 16, and 17 referred to the filing of
a bill of exceptions by Mrs. McGrew in the divorce suit, and the
statute and rule of court of Hawaii in respect of the practice in
relation thereto.]"
"15. The following Hawaiian law was in force in the Hawaiian
Islands at the time said decree of divorce was granted, to-wit:
when a divorce is decreed for the adultery or other offense
amounting thereto of the wife, the husband shall hold her personal
estate forever."
And the court concluded, as matter of law, that the rights of
Mrs. McGrew in and to the policy and the moneys due thereunder
never passed to her husband, nor did the policy or money due
thereunder ever become his property, and that the insurance company
was indebted to Mrs. McGrew on said policy in the sum of $5,000 and
interest. Judgment was rendered accordingly
Page 188 U. S. 295
October 11, 1897, and the case was carried to the supreme court
of the state, and the record filed therein December 13, 1897. The
judgment was affirmed February 28, 1901, and a petition for
rehearing denied,.132 Cal. 85. This writ of error was allowed by
the chief justice of that court.
The Supreme Court of California held that the construction given
by the courts of the Republic of Hawaii to the statute of that
Republic that permitted an action for a divorce to be maintained by
the guardian of an incompetent person should be accepted, although
such was not the law of California, and that the judgment of
divorce rendered in that Republic, in pursuance of the statute so
construed, should, by comity, be given effect by the courts of
California as a decree of divorce; that the statute of Hawaii
declaring that, where a divorce is decreed for the adultery of the
wife, the husband shall take her personal estate, could have no
operation pending the suit for divorce, and not until after the
entry of judgment; that Mrs. McGrew was bound by the decree of
divorce in Hawaii, so far as the dissolution of the bond of
matrimony was concerned, she having appeared to the action; that,
when a husband commences a suit for divorce, the wife may acquire a
separate actual domicil by change of residence from one country to
another pending the suit; that Mrs. McGrew became domiciled in
California prior to the entry of the decree, and that the statute
of Hawaii declaring the forfeiture of her personal property to the
husband could not operate in California to affect her, or to give
to the husband a policy of insurance, which, by its terms, was
payable to her, and which at the time of the decree, was governed
by the law of her domicil in California. No allusion whatever was
made by the supreme court to the treaty between Hawaii and the
United States.
The decisions of the Supreme Court of Hawaii are reported,
McGrew, a Person non compos, by his Guardian, Charles L. Carter
v. Alphonsine McGrew, 9 Haw. 475;
McGrew &c. v.
McGrew, 10 Haw. 600;
Carter v. Mutual Life Insurance
Company, 10 Haw. 559,
S.C., 10 Haw. 562.
In the opinion on the last hearing, December 16, 1896, the
Page 188 U. S. 296
court observed:
"The company, not having brought the widow into court by
interpleader, is in the unfortunate position of being subjected to
two suits -- one by the administrator here, the other by the widow
in California. It must now rely on the assumption that the two
courts will take the same view of the law."
The court also considered the point that the statute in
question, section 1331 of the Civil Code, was repealed by
implication by the married women's act of 1888. But it held that
the section was not inconsistent with that act, and that it might
"be regarded as a special provision for a penalty or forfeiture in
case of a divorce for the offense of adultery." And the court said
that it was glad to know that the section had been repealed.
Section 1331 was repealed May 12, 1896 (Hawaii Laws 1896, p. 70,
act 24).
Article VIII of the Treaty between the United States and the
Kingdom of Hawaii was as follows:
"The contracting parties engage, in regard to the personal
privileges, that the citizens of the United States of America shall
enjoy in the dominions of his Majesty, the King of the Hawaiian
Islands, and the subjects of his said Majesty in the United States
of America, that they shall have free and undoubted right to travel
and to reside in the states of the two high contracting parties,
subject to the same precautions of police which are practiced
towards the subjects or citizens of the most favored nations. They
shall be entitled to occupy dwellings and warehouses, and to
dispose of their personal property of every kind and description, .
. . and their heirs or representatives, being subjects or citizens
of the other contracting party, shall succeed to their personal
goods, whether by testament or
ab intestato, and may take
possession thereof, either by themselves or by others acting for
them, and dispose of the same at will, paying to the profit of the
respective governments such dues only as the inhabitants of the
country wherein the said goods are shall be subject to pay in like
cases. And in case of the absence of the heir and representative
such care shall be taken of the said goods as would be taken of the
goods of a native of the same country in like case, until the
lawful owner may take measures for receiving them. And if a
Page 188 U. S. 297
question should arise among several claimants as to which of
them said goods belonged, the same shall be decided finally by the
laws and judges of the land wherein the said goods are. Where, on
the decease of any person holding real estate within the
territories of one party, such real estate would, by the laws of
the land, descend on a citizen or subject of the other, were he not
disqualified by alienage, such citizen or subject,"
etc. 9 Stat. 977.
Page 188 U. S. 307
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Appellate jurisdiction was conferred on this Court by the
twenty-fifth section of the Judiciary Act of 1789, over final
judgments and decrees in any suit in the highest court of law or
equity of a state in which a decision in the suit could be had, in
three classes of cases: the first class was where the validity of a
treaty or statute of, or an authority exercised under, the United
States, was drawn in question, and the decision was against their
validity; the second was where the validity of a statute of, or an
authority exercised under, any state on the ground of their being
repugnant to the Constitution, treaties, or laws of the United
States, was drawn in question, and the decision was in favor of
their validity, and the third was
"or where is drawn in question the construction of any clause of
the Constitution, or of a treaty, or statute of, or commission held
under, the United States, and the decision is against the title,
right, privilege, or exemption specially set up or claimed by
either party under such clause of the said Constitution, treaty,
statute, or commission."
1 Stat. 73, 85, c. 20, § 25.
By the second section of the Act of February 5, 1867, 14 Stat.
385, 386, c. 28, the original twenty-fifth section was reenacted
with certain changes, and, among others, the words just quoted were
made to read:
"or where any title, right, privilege, or immunity is claimed
under the Constitution, or any treaty or statute of, or commission
held, or authority exercised under, the United States, and the
decision is against the title, right, privilege,
Page 188 U. S. 308
or immunity specially set up or claimed by either party under
such Constitution, treaty, statute, commission, or authority."
And this was reproduced in section 709 of the Revised Statutes.
The change from the drawing in question of the construction of a
clause of the Constitution, or of a treaty, statute, or commission,
to the claim of a right under the Constitution, treaty, statute,
commission, or authority, emphasized the necessity that the right
must be specially set up and denied.
In
Baltimore & Potomac Railroad Company v. Hopkins,
130 U. S. 210, the
distinction between the denial of validity and the denial of a
title, right, privilege, or immunity specially set up or claimed is
pointed out, as well as the distinction, between the construction
of a statute or the extent of an authority and the validity of a
statute or of an authority.
Our jurisdiction of this writ of error is asserted under the
third of the classes of cases enumerated in section 709, and it is
thoroughly settled that in order to maintain it, the right, title,
privilege or immunity relied on must not only be specially set up
or claimed, but at the proper time and in the proper way.
The proper time is in the trial court whenever that is required
by the state practice, in accordance with which the highest court
of a state will not revise the judgment of the court below on
questions not therein raised.
Spies v. Illinois,
123 U. S. 131;
Jacobi v. Alabama, 187 U. S. 133;
Layton v. Missouri, 187 U. S. 356;
Erie Railroad Company v. Purdy, 185 U.
S. 148.
The proper way is by pleading, motion, exception, or other
action, part, or being made part, of the record, showing that the
claim was presented to the court.
Loeb v. Trustees,
179 U. S. 472,
179 U. S. 481.
It is not properly made when made for the first time in a petition
for rehearing after judgment; or in the petition for writ of error;
or in the briefs of counsel not made part of the record.
Sayward v. Denny, 158 U. S. 180;
Zadig v. Baldwin, 166 U. S. 488.
The assertion of the right must be made unmistakably, and not left
to mere inference.
Oxley Stave Company v. Butler County,
166 U. S. 648.
If the highest court of a state entertains a petition for
rehearing, which raises federal questions, and decides them, that
will be sufficient;
Mallett v. North Carolina,
181 U. S. 589;
or
Page 188 U. S. 309
if the court decides a federal question which it assumes is
distinctly presented to it in some way.
Home for Incurables v.
New York, 187 U. S. 155;
Sweringen v. St. Louis, 185 U. S.
46.
Jurisdiction may be maintained where a definite issue as to the
possession of the right is distinctly deducible from the record and
necessarily disposed of, but this cannot be made out by resort to
judicial knowledge.
Powell v. Brunswick County,
150 U. S. 433;
Mountain View Mining & Milling Company v. McFadden,
180 U. S. 533;
Arkansas v. Kansas and Texas Coal Company, 183 U.
S. 185.
Counsel by their specification of errors, under Rule 21, assert
the federal questions to be that the decision of the Supreme Court
of California was against a title, right, privilege, or immunity
claimed by plaintiff in error under the treaty between the United
States and Hawaii. And that the decision was in contravention of
Section 1 of Article IV of the Constitution.
1. We do not find that any claim under the treaty was made in
the trial court, and the rule of practice of the Supreme Court of
California is that it will not pass on questions raised for the
first time in that court, and which might and should have been
raised in the trial court.
Stoddard v. Treadwell, 29 Cal.
281;
King v. Meyer, 35 Cal. 646;
Deady v.
Townsend, 57 Cal. 298;
Williams v. McDonald, 58 Cal.
527;
Anderson v. Black, 70 Cal. 226, 231.
Neither the pleading of the decree of divorce nor of the statute
of Hawaii providing for the forfeiture of Mrs. McGrew's rights in
the policy of insurance, as construed by the Supreme Court of
Hawaii, nor of both together, amounted to specially asserting any
right under the treaty. Those averments did not assert that claim
in the trial court in such manner as to bring it to the attention
of that court, nor, indeed, to show that any right under the treaty
was present in the mind of counsel.
To give them that effect would be in the teeth of our decision
in
Oxley Stave Company v. Butler County, 166 U.
S. 648, and numerous other decisions. That case involved
a decree in respect of which there was a general allegation that it
was
Page 188 U. S. 310
rendered against dead persons, as well as in the absence of
necessary parties who had no notice of the suit, and we held that
such general allegations did not meet the statutory requirement
that the final judgment of a state court may be reexamined here if
it denies some title, right, privilege, or immunity "specially set
up or claimed" under the Constitution or authority of the United
States. MR. JUSTICE HARLAN said:
"This statutory requirement is not met if such declaration is so
general in its character that the purpose of the party to assert a
federal right is left to mere inference. It is the settled doctrine
of this Court that the jurisdiction of the circuit courts of the
United States must appear affirmatively from the record, and that
it is not sufficient that it may be inferred argumentatively from
the facts stated. . . . Upon like grounds, the jurisdiction of this
Court to reexamine the final judgment of a state court cannot arise
from mere inference, but only from averments so distinct and
positive as to place it beyond question that the party bringing a
case here from such court intended to assert a federal right."
This also disposes of the suggestion that the offering in
evidence of the judgment in the suit by the administrator, and of
evidence of its payment, raised a federal question under the
treaty, for no such ground was taken in relation to that evidence,
to say nothing of the fact that Mrs. McGrew was not a party to that
suit.
In the bill of exceptions, there is an enumeration of certain
objections to the entry of judgment and certain errors of law
alleged to have occurred during the trial, and to have been
excepted to by defendant, which embraces the objection that the
decision of the trial court was against law, because, among other
things, the findings of fact did not determine the issues raised by
the allegation in the answer quoted in the statement preceding this
opinion, and that the court erred in sustaining the objection of
plaintiff to the introduction of evidence of payment by the company
to the administrator of the amount due on the policy. But there is
no reference to the treaty, and all this no more set up the claim
than the answer itself.
In fact, the question was not even raised in the supreme
Page 188 U. S. 311
court, though, if so, the court was not then bound to regard it.
Reference was made in the briefs in the supreme court to the
treaty, but those references did not specially set up or claim any
right as secured by the treaty, nor were the briefs made part of
the record by any certificate or entry duly made, and our attention
has not been called to any statute or rule of court in California
making them such.
In the petition for rehearing, it was said that the treaty made
the decision in
Carter v. Insurance Company, 10 Haw. 117,
controlling, and if that could be considered as a compliance with §
709, which we do not think it could, it came too late, and the
petition was denied without an opinion. In doing so, that court
adhered to the usual course of its judgments, and its action cannot
be revised by us. If the Supreme Court of California had seen fit
on that petition to entertain the contention of plaintiff in error
as asserting a federal right, and had then decided it adversely,
the case would have occupied a different position.
Where a state court refuses to give effect to the judgment of a
court of the United States, rendered upon a point in dispute, and
with jurisdiction of the case and the parties, it denies the
validity of an authority exercised under the United States, and
where a state court refuses to give effect to the judgment of a
court of another state it refuses to give full faith and credit to
that judgment. The one case falls within the first class of cases
named in § 709, and the other within the third class.
Where a judgment of another state is pleaded in defense, and
issue is made upon it, it may well be ruled that that sets up a
right under the third subdivision, because the effect of the
judgment is the only question in the case; but here, the plea of
the decree of divorce and the statute did not necessarily suggest
or amount to a claim under the treaty. They were properly admitted
in evidence under the state law for what they might be worth as a
defense, but that did not involve the assertion of an absolute
right under the treaty.
The Supreme Court of Hawaii in its second opinion in the
administrator's case said that the company, not having brought Mrs.
McGrew in by interplea, must rely on the courts of California
Page 188 U. S. 312
taking the same view that the courts of Hawaii did, but did not
intimate that the courts of California were compelled by treaty to
take that view.
Nor can this failure to claim under the treaty be supplied by
judicial knowledge. We so held in
Mountain View Mining and
Milling Company v. McFadden, 180 U. S. 533,
where we ruled that judicial knowledge could not be resorted to to
raise controversies not presented by the record, and Professor
Thayer's Treatise on Evidence was cited, in which, referring to
certain cases relating to the pleadings and matters of record, it
was said
"that the right of a court to act upon what is, in point of
fact, known to it must be subordinate to those requirements of form
and orderly communication which regulate the mode of bringing
controversies into court, and of stating and conducting them."
Arkansas v. Kansas and Texas Coal Company, 183
U. S. 190.
That rule must necessarily govern us in passing on the question
of our appellate jurisdiction under § 709.
The Supreme Court of California held that the Hawaiian statute
had no force in California "except by comity;" accorded full effect
to the decree of divorce as dissolving the bond of matrimony, but
decided that Mrs. McGrew was not affected by the statute because
she was not domiciled in Hawaii, and was domiciled in California,
when that decree was rendered, and when the statute could have
operated if she had been domiciled in Hawaii, and that the statute
"had no operation upon her or her personal property here; for the
law which governs personal property is the law of the domicil." As
to whether a federal question was involved at all,
see Roth v.
Ehman, 107 U. S. 319;
Roth v. Roth, 104 Ill. 35; Wuerttemburg Treaty, 1844,
Comp. Treaties (1899) 656.
It is argued that, by the judgment against the company in favor
of McGrew's administrator, the Hawaiian courts had adjudicated that
Mrs. McGrew's title passed to the administrator. But Mrs. McGrew
was not a party to that action, and was not bound by it so that it
could be pleaded against her. The insurance company did not
litigate the question of ownership on her behalf, and was in no way
authorized to represent
Page 188 U. S. 313
her. In any point of view, we return to the contention that it
was in virtue of the treaty that the California courts were obliged
to accept the Hawaiian decisions, and the record fails to show that
a right or title was set up thereunder.
2. The second question indicated by plaintiff in error is that
the decision was in conflict with § 1 of Article IV of the
Constitution, providing that full faith and credit in each state
shall be given to the public acts, records, and public proceedings
of every other state, as carried out by § 905 of the Revised
Statutes, because it is insisted that, prior to the decision this
constitutional provision applied to Hawaii, and should be regarded
as an enlargement of and connected with the alleged claim of right
under the treaty. But an alleged right under a treaty between two
foreign nations is inconsistent with an alleged right arising under
the federal Constitution, and as a right under the Constitution, it
was not at any time or in any way brought to the attention of the
state courts. The judgment of the trial court was rendered October
11, 1897. The resolutions of annexation were passed July 7, 1898.
The act to provide a government for Hawaii was passed April 30,
1900. By this act, it was provided that the laws of Hawaii not
inconsistent with the Constitution and laws of the United States or
the provisions of the act should remain in force, subject to repeal
or amendment, but the act forfeiting the wife's property was
repealed May 12, 1896. Hawaii Laws 1896, p. 70.
The judgment of the Supreme Court of California was rendered
February 28, 1901, and we cannot retain jurisdiction on the ground
of the assertion of a federal right which did not exist when the
judgment was rendered in the trial court, and which was not brought
to the attention of the highest court of the state in any way
whatever.
Writ of error dismissed.
MR. JUSTICE PECKHAM took no part in the consideration and
disposition of this case.
MR. JUSTICE WHITE dissented.
