[158 U.S. 180, 183] G. M. Emory, for the motion.
Charles E. Shepard, opposed.
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 re-examine the judgment below. Powell v. Brunswick Co., 150 U.S. 433, 439 , 14 S. Sup. Ct. 166, 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 , 14 Sup. Ct. 874; Morrison v. Watson, 154 U.S. 111 , 115, 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, 585 , 13 S. Sup. Ct. 934, 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 , 11 Sup. Ct. 235, and cases cited. (5) Nor do the arguments of counsel, though the opinions of the [158 U.S. 180, 184] state courts are now made such by rule. Gibson v. Chouteau, 8 Wall. 314; Parmalee v. Lawrence, 11 Wall. 36; Gross v. Mortgage Co., 108 U.S. 477, 484 , 2 S. Sup. Ct. 940; U. S. v. Taylor, 147 U.S. 695, 700 , 13 S. Sup. Ct. 479. ( 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 claimd . 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 Co., 150 U.S. 433, 400 , 14 S. Sup. Ct. 166.
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 [158 U.S. 180, 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:
And, as to the exclusion of evidence complained of, the supreme court said:
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.