196 U.S. 128 (1905), 69, Chicago, Indianapolis and Louisville Railway Company v. McGuire

Docket Nº:No. 69
Citation:196 U.S. 128, 25 S.Ct. 200, 49 L.Ed. 413
Party Name:Chicago, Indianapolis and Louisville Railway Company v. McGuire
Case Date:January 03, 1905
Court:United States Supreme Court

Page 128

196 U.S. 128 (1905)

25 S.Ct. 200, 49 L.Ed. 413

Chicago, Indianapolis and Louisville Railway Company



No. 69

United States Supreme Court

January 3, 1905

Argued December 2, 6, 1904




Where certain facts from which a federal question might arise were argued in the state court, but their federal character was not indicated, they cannot be made the basis of a writ of error.

Where a petition to transfer the case to the supreme court of the state, which contains a mere suggestion of the violation of a federal right without any reference to the Constitution of the United States, is denied without opinion, this Court may infer that the petition was denied because the constitutional point was not made in the courts below, and if it was considered, the burden to show it is on the plaintiff in error.

Page 129

It is too late to set up a federal question for the first time in the petition for writ of error to this Court.

Because plaintiff in error relied solely for title upon a decree of foreclosure and sale in a federal court, it does not necessarily follow that a federal question was set up and decided adversely, no statute, state or federal, or authority thereunder being called in question.

This was a suit in the nature of a bill in equity instituted in the circuit court for Pulaski County, by the railroad company to quiet its title to certain land, and for an injunction. The case was tried before a jury, and a verdict returned for the defendants, under instruction of the court.

Both parties claimed title through the Louisville, New Albany & Chicago Railway Company, plaintiff in error, which was also plaintiff below, through certain mortgages given by the New Albany company in 1886, 1890, and 1894, which were foreclosed in the United States circuit court, and through which foreclosure and subsequent sale its title became vested; defendants, through a judgment recovered by McGuire September 24, 1896, in the Circuit Court of White County, against the New Albany company for $2,416.30, upon which an execution was issued October 16, 1897, to the sheriff of Pulaski County, and a levy made upon the real estate in dispute. A sale was made November 13, 1897, to the defendant Hathaway, to whom a deed was executed by the sheriff November 23, 1898.

It was insisted...

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