‘SAMUEL H. LEATHE, Plff. in Err.,

v.

EDWARD L. THOMAS.

(See S. C. Reporter’s ed. 93-100.)

Error to state court — Federal question — decision on non-Federal ground. No Federal question respecting due process of law or full faith and credit which will sustain a writ of error from the Fed¬ eral Supreme Court to the highest court of a state is involved in a suit in which the state court, after reversing a judgment for defendant on the ground that a judgment of a Federal circuit court, set up as res judi¬ cata in a special replication to two of four pleas in set-off, is binding, decided on re¬ hearing that, conceding the judgment of the Federal court to be binding as to the two pleas to which the replication of res judicata applies, judgment for defendant can be up¬ held upon the other two pleas referring to earlier stages of the same transaction; nor does it matter that the Federal Supreme Court may think the state court wrong in believing that there is evidence to support these pleas.

[No. 21.]

Argued October 17, 1907. Decided November 11, 1907.

Note.— On the general subject of writs of error from United States Supreme Court to state courts — see notes to Martin v. Hunter, 4 L. ed. U. S. 97 ; Hamblin v. Western Land Co. 37 L. ed. U. S. 267 ; Re Buchanan, 39 L. ed. U. S. 884 ; and Kipley v. Illinois, 42 L. ed. U. S. 998.

On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts — see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513.

On how and when questions must be raised 118

IN ERROR to the Supreme Court of the State of Illinois to review a judgment affirming, on rehearing, a judgment of the Appellate Court for the Fourth District of that state, which had in turn affirmed a judgment of the Circuit Court of St. Clair County in favor of defendant in an action upon foreign judgments. Dismissed.

See same case below, 218 Ill. 246, 75 N. E. 810.

The facts are stated in the opinion.

Mr. John Maynard Harlan argued the cause, and, with Mr. Victor Koerner, filed a brief for plaintiff in error:

The question whether a state court has given due effect to the judgment of a court of the United States is a question arising under the Constitution and laws of the United States, and comes within the juris¬ diction of this court.

Crescent City L. S. L. & S. H. Co. v. Butchers’ Union, S. H. & L. S. L. Co. 120 l . S. 141, 30 L. ed. 614, 7 Sup. Ct. Rep. 472.

This court, when necessary to a correct understanding of the merits of a controver¬ sy brought to it on appeal or writ of error, will examine the entire record, including even the evidence introduced below.

Washington Gaslight Co. v. District of Columbia, 161 U. S. 316, 40 L. ed. 712, 16 Sup. Ct. Rep. 564.

Under Hurd’s Rev. Stat. (Ill.) 1905, chap. 37, § 16, justices of the supreme court are required, in cases submitted to it, to de¬ liver and file written opinion. It is also provided that such opinions shall also be spread at large upon the records of the court. The opinions of the supreme court of Illinois are therefore properly a part of its records, and it has been so held by this court.

Gross v. United States Mortg. Co. 108 U. S. 477, 486, 27 L. ed. 795, 798, 2 Sup. Ct. Rep. 940; National Foundry & Pipe Works v. Oconto Water Supply Co. 183 U. S. 216, 234, 46 L. ed. 157, 169, 22 Sup. Ct. Rep.

Messrs. John Maynard Harlan, Victor Koerner, and James S. Harlan filed a brief in reply for plaintiff in error.

Mr. Edward Ij. Thomas in propria pcr-

and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States — see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33.

On review of decisions of state courts pre¬ senting the question of full faith and credit — see note to Allen v. Allegheny Co. 49 L. ed. U. S. 551.

On writs of error to state courts in cases involving questions of due process of law — see note to Burt v. Smith, 51 L. ed. U. S.

207 U. S.

Leathe v. Thomas.

96, 07

sona argued the cause and filed a brief for defendant in error:

The errors assigned on the record upon the appeal from the appellate court to the supreme court of Illinois were too general to raise the question of former adjudication, and presented no question for determina¬ tion upon that issue.

Louisiana, A. & M. R. Co. v. Levee Conn s. 31 C. C. A. 121, 58 U. S. App. 281, 87 Fed.

Not being properly presented to the court below, this court will not consider them.

Ansbro v. United States, 159 U. S. 695, 40 L. ed. 310, 16 Sup. Ct. Rep. 187.

This court will not review or reverse a decision of a state court upon a question of statutory practice.

Nobles v. Georgia, 168 U. S. 398-405, 42 L. cd. 515-518, 18 Sup. Ct. Rep. 87; Egan v. llart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300.

Before this court can take jurisdiction upon a Federal question, four things must concur :

1st. There must be a Federal question presented by the record.

2d. The determination of that Federal question in the court below must have been necessary to the proper determination of the cause.

3d. The decision of the Federal question by the lower court must have been adverse to the plaintiff in error.

4th. There must be no other grounds out¬ side of the Federal question upon which the judgment of the lower court was pred¬ icated or might stand.

New Orleans Waterworks Co. v. Louisi¬ ana, 185 U. S. 344-351, 46 L. ed. 941-944, 22 Sup. Ct. Rep. 691; Gableman v. Peoria, D. & E. R. Co. 179 U. S. 339, 45 L. ed. 222, 21 Sup. Ct. Rep. 171; New Orleans v. Ben¬ jamin, 153 U. S. 411, 38 L. ed. 764, 14 Sup; Ct. Rep. 905; Swafford v. Templeton, 185 U. S. 493, 46 L. ed. 1008, 22 Sup. Ct. Rep. 783; Iowa v. Rood, 187 U. S. 87, 47 L. ed. 86, 23 Sup. Ct. Rep. 49; Sweringen v. St. Louis, 185 U. S. 45, 46 L. ed. 799, 22 Sup. Ct. Rep. 569; Hale v. Lewis, 181 U. S. 479, 45 L. ed. 962, 21 Sup. Ct. Rep. 677.

Mr. Justice Holmes delivered the opin ion of the court:

This is an action upon judgments ob¬ tained in Missouri by the plaintiff in error against the defendant in error, hereafter called respectively plaintiff and defendant. The defendant, not denying the judgments, pleaded four pleas in set-off. The first was for money had and received, interest, and upon an account stated. The second was up¬ on an alleged contract of January 24, 1893. The third set up an alleged contract of 52 L. ed.

March 25, 1893, to pay the debt of a railroad company to the defendant, a suit and judg¬ ment for the defendant against the railroad company, a bill in equity brought by the plaintiff to enjoin the proceedings in that suit, upon which one of the issues was the liability under the contract, and that after a hearing the bill was dismissed. The fourth plea was on the contract of March 25, without more. There was a general replica¬ tion denying the pleas, and also a special replication to the third and fourth, to the effect that a suit upon the alleged contract was brought against the plaintiff for the use of the defendant and removed to the LTffted States circuit court and there determined in favor of the present plaintiff, the pro¬ ceedings set up in the third plea being held not conclusive. The suit referred to is Belleville & St. L. R. Co. v. Leathe, 28 C.

C. A. 279, 53 U. S. App. 718, 84 Fed. 103.

The case was sent to a referee to report his conclusions of law and fact. The referee re¬ ported in favor of the defendant and also re¬ ported the evidenCe. The trial court ordered judgment on the referee’s report. This judg¬ ment was affirmed by an intermediate court and then was taken by writ of error to the supreme court of the state. That court held that the judgment of the United States cir¬ cuit court made the matter of the third and fourth pleas in set-off res judicata, and re¬ versed the judgment of the court below.

But, upon a rehearing, the court, while ad¬ hering *to its judgment upon the third and[9 7] fourth pleas, stated that it had overlooked the first and second, that the judgment could be sustained upon them, that there was evi¬ dence to support them both, or at least the first, and that the referee’s finding might be supported under the first. On these grounds the judgment was affirmed. 218 Ill. 246,

75 N. E. 810.

The case now is here on a writ of error, the errors alleged being that full faith and credit was not given to the judgment of the United States court, and that the present judgment was rendered without due process of law. It is true that the judgment of the United States court was held binding against the pleas to which it applies, but it is said that it is emptied of all real effect if a judgment can be entered upon the first and second pleas, referring to earlier stages of the same transaction, because it is said that there was no evidence to support those pleas and no finding upon them, so that to support the judgment by their presence on the record is a mere pretense, and either is a denial of due credit to the former judg¬ ment or deprives the plaintiff of his proper¬ ty without due process of law.

In order to dispose of the case it is not necessary to state the dealings in detail ;

119

91-99

Supreme Court of the United States.

Oct. Term

the following outline is enough : The de¬ fendant wanted money from the plaintiff to start a railway company. An agreement with regard to it was made on January 24, 1893, out of which, with the accompanying and subsequent transactions, the defendant sought to establish a right to be reim¬ bursed for his advances to the road. Later, on March 25 of the same year, there was a conveyance of its property by the railway company to the plaintiff and a conveyance by him to another company. The former deed was for $1 and “other valuable consid¬ erations to it from him moving,” and the defendant alleged that the other considera¬ tions embraced a promise of the plaintiff to reimburse him. The referee’s report refers to the dealings of January, but seemingly discovers no contract of reimbursement in them. It shows that the plaintiff insisted that all that he did was under the agreement of that month, but says that the evidence

does not prove it conclusively. *It says that matters culminated in the agreement of March 25, and finds that as part of the con¬ sideration of that deed the plaintiff prom¬ ised to pay.

The judgment purported to be based upon the referee’s report, and it may be that, if it were our concern to deal with it, we should find it hard to discover sufficient war¬ rant for a judgment on the first or second pleas. The general line of thought which the report follows seems to lead to the third and fourth. The conclusion is that the de¬ fendant is entitled to recover the amount of the judgment mentioned in the third plea, and this follows immediately after the find¬ ing of the plaintiff’s promise. The plain¬ tiff excepted to the referee’s failure to find that everything was done under the Janu¬ ary contract. And further reasons might be given for thinking that the court below was wrong. Even if the words of the judg¬ ment, “renders judgment on said referee’s report,” should be held to include the evi¬ dence as well as the referee’s findings, and if it should be presumed that one of the courts below the supreme court of the state had reconsidered the evidence uefore enter¬ ing or affirming the judgment, still, although there was evidence enough of the defendant’s advances to the railway company, we might assume, for purposes of argument, that there was nothing sufficient to make out a promise on the plaintiff’s part before March. But on the most favorable statement that we can make on the side of the plaintiff in error we can s?e no ground for coming to this court.

It is admitted that the general and well- settled rule is that in a case coming from a state court this court can consider only Federal questions, and that it cannot enter- 1

120

tain the case unless the decision was against the plaintiff in error upon those questions. Murdock v. Memphis, 20 Wall. 590, 22 L. ed. 429; Sauer v. New York, 206 U. S. 536,

546, 51 L. ed. 1176, 1181, 27 Sup. Ct. Rep.

upon those questions must have been neces¬ sary to the decision of the case, so that, if the judgment complained of is supported also upon other and independent grounds, the judgment must be affirmed or the writ of error dismissed, as the case may be. *Mur-[9 9] dock v. Memphis, supra. But Murdock v. Memphis does not stop there. It further es¬ tablishes that when the record discloses such other and completely adequate grounds this court commonly does not inquire whether the decision upon them was or was not cor¬ rect, or reach a Federal question by deter¬ mining that they ought not to have been held to warrant the result.' 20 Wall. 590,

635, 22 L. ed. 429, 444; Eustis v. Bolles, 150 U. S. 361, 369, 37 L. ed. 1111, 1113, 14 Sup. Ct. Rep. 131; Castillo v. McConnico,

168 U. S. 674, 679, 42 L. ed. 622, 624, 18 Sup. Ct. Rep. 229.

Of course, there might be cases where, although the decision put forward other rea¬ sons, it would be apparent that a Federal question was involved, whether mentioned or not. It may be imagined, for the sake of argument, that it might appear that a state court, even if ostensibly deciding the Fed¬ eral question in favor of the plaintiff in er¬ ror, really must have been against him up¬ on it, and was seeking to evade the juris¬ diction of this court. If the ground of de¬ cision did not appear and that which did not involve a Federal question was so palpably unfounded that it could not be presumed to have been entertained, it may be that this court would take jurisdiction. Johnson v.

Risk, 137 U. S. 300, 307, 34 L. ed. 683,

686, 11 Sup. Ct. Rep. 111. But there is nothing of that sort in this case. At first, having in mind only the third and fourth pleas, to which alone the judgment of the United States court was a bar, the supreme court decided in favor of the plaintiff. It affirmed the judgment below only upon a re¬ hearing, and after its attention had been called to the first and second pleas. It did not recede from or qualify its former de¬ cision so far as that went, but simply point¬ ed out that there were other pleas to which the replication of res judicata did not ap¬ ply, and on which the judgment might be upheld. Suppose that it was mistaken as to the evidence, the mistake was upon a matter admitting of hesitation, for which it would seem from the opinion that there were special reasons in the state of the rec¬ ord and the admission of counsel. The ques¬ tion is one with which, by the general rule,

207 U. S.

Illinios ex eel. McNichols v. Pease.

99, 100

we have nothing to do, and we see no rea¬ son why the general rule should not be ap¬ plied.

The first and second pleas were on the

record and at issue. *The plaintiff had no¬ tice that the defendant meant to prevail on whatever ground he could. He had his hear¬ ing, even if it should be thought that he might have insisted on a ruling that there was no evidence to support those pleas. However it is put, the claim of a right to resort to this court after the only Federal question has been decided in the plaintiff’s favor must fail.

Writ of error dismissed.

Mr. Justice Harlan and Mr. Justice Day dissent.