This was a suit brought by Dennis Moloney against Samuel Nelson, Albert J. Adams, and others in the supreme court of New York, city and county of New York, to foreclose a mortgage on real estate given Moloney by Nelson to secure a bond for $10,000, in indemniflcation of Moloney against [174 U.S. 164, 165] loss by reason of becoming bail for one O'Brien. The judge before whom the case was tried found the facts as follows:
And thereupon judgment of foreclosure and sale for the amount due, and for payment of any deficiency, was entered.
Before this suit was commenced Moloney had brought a similar suit against Nelson, and recovered judgment, which was reversed by the general term of the supreme court on the ground that it had been prematurely brought, because Moloney had not then paid anything on account of the judgment entered on the forfeiture of the criminal recognizance. 70 Hun, 202, 24 N. Y. Supp. 147. From that judgment Moloney prosecuted an appeal to the court of appeals, entering into the usual stipulation that, if the judgment appealed from was affirmed, judgment absolute might be rendered against him. The judgment was affirmed, and judgment absolute entered. 144 N. Y. 182, 39 N. E. 82. After that this action was commenced, but in the meantime Nelson had transferred the property mortgaged to defendant Adams.
From the judgment of the trial court (39 N. Y. Supp. 930) in this suit Nelson alone appealed to the appellate division of the supreme court in the First department, by which it was affirmed (42 N. Y. Supp. 418). Nelson then carried the cause to the court of appeals, and the judgment of affirmance was affirmed. 158 N. Y. 351, 53 N. E. 31. The record having been remitted to the supreme court, this writ of error was allowed, and motions to dismiss or affirm submitted.
Abram J. Rose, for defendant in error. [174 U.S. 164, 167] Wm. H. Newman, for plaintiff in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
It is stated in the opinion of the court of appeals, by Chief Judge Parker, that the defenses interposed by Nelson 'upon the trial, and relied upon here, are: (1) The stipulation given by the plaintiff on the appeal to this court in a prior action brought to foreclose the mortgage is a bar to the recovery in this action. (2) The bond and mortgage having been given to indemnify bail in a criminal case, they are void, because contrary to public policy.'
The court of appeals ruled that the contention that the stipulation given on appeal to that court operated to prevent a recovery was 'without support in authority or reason'; and, as to the second ground relied upon to defeat the action, that it was not a part of the public policy of the state of New York to insist upon personal liability of sureties and forbid bail to become indemnified. These conclusions involved no federal question, nor can we find on this record that any title, right, privilege, or immunity under the constitution or the laws of the United States was specially set up or claimed in the state courts, and that he decision of the highest court of the state in which a decision could be had was against any title, right, privilege, or immunity so set up or claimed. But it is said that Nelson filed his petition and bond for the removal of the cause from the supreme court of the state of New York to the United States circuit court for the Southern district of New York on the ground that, at the time of the commencement of the action, he was a citizen of New Jersey, and Moloney was a citizen of the state of New York, and that the action taken thereon raised a federal question. It appeared that Moloney, and Adams, the holder of the record title to the property mortgaged, were both citizens of the state of New York; and it is not claimed that the state court denied the petition, but, on the contrary, conceded that [174 U.S. 164, 168] the record was transmitted to the circuit court, and that that court, on motion, remanded the cause to the state court because there was no separable controversy wholly between citizens of different states. This being so, the proceedings in relation to the removal of the cause afforded no ground for the issue of the writ of error.
In Missouri Pac. Ry. Co. v. Fitzgerald, 160 U.S. 556, 582 , 16 S. Sup. Ct. 396, we held that 'if the circuit court remands a cause, and the state court thereupon proceeds to final judgment, the action of the circuit court is not reviewable on writ of error to such judgment. A state court cannot be held to have decided against a federal right, when it is the circuit court, and not the state court, which has denied its possession . ... As under the statute a remanding order of the circuit court is not reviewable by this court on appeal or writ of error from or to that court, so it would seem to follow that it cannot be reviewed on writ of error to a state court, the prohibition being that 'no appeal or writ of error from the decision of a circuit court remanding such cause shall be allowed.' And it is entirely clear that a writ of error cannot be maintained under section 709, Rev. St., in respect of such an order, where the state court has rendered no decision against a federal right, but simply accepted the conclusion of the circuit court.'
Writ of error dismissed.