Great Western Tel Co v. Burnham

• Decision Date: 13 April 1896
• Docket Number: No. 159,159
• Citation: 40 L.Ed. 991,16 S.Ct. 850,162 U.S. 339
• Parties: GREAT WESTERN TEL. CO. v. BURNHAM et al
• Court: U.S. Supreme Court

162 U.S. 339

16 S.Ct. 850

40 L.Ed. 991

GREAT WESTERN TEL. CO.

v BURNHAM et al.

No. 159.

April 13, 1896.

This was an action similar to that of Telegraph Co. v. Purdy, 16 Sup. Ct. 810, and was brought October 8, 1888, in the circuit court of Milwaukee county, in the state of Wisconsin, by the same plaintiff against George Burnham, and prosecuted against his executors, to recover the amount of an assessment alleged to be due under a contract of subscription in the same form as in that case, and under the decree of the circuit court of Cook county, in the state of Illinois, therein stated.

The complaint did not state the law of Illinois, nor set forth the decree of assessment in full, but alleged, among other things, that by that decree an assessment of 35 per cent. a share was laid upon all stockholders who had not paid in full, and that some stockholders, including the defendant, had paid $10, or 40 per cent, on each share, and many stockholders had never paid more than 50 cents, or 2 per cent, on a share.

A demurrer to the complaint, upon the ground, among others, that it did not state facts sufficient to constitute a cause of action, was filed by the defendant, and overruled by the court.

Upon appeal by the defendant from the order overruling the demurrer, the supreme court of the state, as the record shows, adjudged that the order be reversed, and the cause 'remanded to the said circuit court for such further proceedings therein as may be according to law,' and, in its opinion, after deciding that the assessment was unequal and unjust, added: 'We do not intend to express any definite opinion as to the real effect of the decree of the Illinois court, or as to how far it concludes the rights of shareholders who were not parties to that proceeding.Those questions are not now necessarily before us, and may be postponed until they arise.We confine our decision to the objection that the complaint shows an unlawful and illegal call or assessment upon Mr. Burnham, which should not be enforced.'79 Wis. 47, 52, 53, 47 N. W. 373.

The cause was accordingly remanded to the inferior court.The plaintiff refused to amend the complaint, and insisted that it stated a sufficient cause of action, and relied upon the decree of assessment as a judgment of a court of the state of Illinois, entitled, under the constitution and laws of the United States, to full faith and credit in the state of Wisconsin.The inferior court sustained the demurrer, upon the ground 'that the complaint does not state facts sufficient to constitute a cause of action, because it does not appear upon the face of the said complaint that a valid or legal assessment was made upon the stockholders, and that the said assessment appears by the said complaint to be unequal and unjust,' and entered final judgment for the defendant, with costs.The plaintiff thereupon sued out this writ of error.

Thos. J. Sutherland, for plaintiff in error.

Reese N. Voorhees, for defendants in error.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

This court has no jurisdiction, upon writ of error, to review a judgment of a state court, unless it was a final judgment, by the highest court of the state in which a de ision in the suit could be had, and against a right set up under the constitution or laws of the United States.Rev. St. § 709.

The order of the inferior court of Wisconsin, overruling the defendant's demurrer, with leave to answer over, was clearly not a final judgment, under the judiciary act of the United States, although it was reviewable on appeal in the supreme court of Wisconsin, under the statutes and practice of the state.

The judgment which was rendered by the supreme court of Wisconsin upon such an appeal cannot be reviewed by this court, because, although it was a judgment of the highest court of the state, and against the plaintiff in error, it was not a final judgment, disposing of the whole case, but only reversed the order of the inferior court overruling the demurrer, and remanded the case to that court for further proceedings.

The subsequent judgment of the inferior court, sustaining the demurrer, and dismissing the action, cannot be reviewed by this court, because although that was a final judgment against the plaintiff in error, setting up a right under the constitution and laws of the United States, it was not a final judgment in the highest court of the state in which a decision in the suit could be had.

The case is singularly like McComb v. Commissioners, 91 U. S. 1, in which an order of a court of common pleas, overruling a demurrer to an answer, was reversed by the supreme court of Ohio, and the case remanded for further proceedings according to law.The court of common pleas, in accordance with that decision, sustained the demurrer to the answer, and the defendant, not moving to amend, but electing to stand by his answer, gave judgment against him; and a writ of error to review that judgment was dismissed by this court, Chief Justice Waite saying: 'The court of common pleas is not the highest court of the state, but the judgment we are called upon to re-examine is the judgment of that court alone.The judgment of the supreme court is one of reversal only.As such, it was not a final judgment.Parcels v. Johnson, 20 Wall. 653;Moore v. Robbins, 18 Wall. 588;St. Clair v. Lovingston, Id. 628.The common pleas was not directed to enter a judgment rendered by the supreme court, and carry it into execution, but to proceed with the case according to law.The supreme court, so far from putting an end to the litigation, purposely left it open.The law of the case upon the pleadings as they stood was settled, but ample power was left in the common pleas to permit the parties to make a new case by amendment.''The final judgment is therefore the judgment of the court of common pleas, and not of the supreme court.It may have been the necessary result of the decision by the supreme court of the questions presented for its determination; but it is, none the less, on that account, the act of the common pleas.As such, it was, when rendered, open to review by the supreme court, and for that reason is not the final judgment of the highest court in the state in which a decision in the suit could be had.Rev. St. § 709.The writ is dismissed.'See, also, Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. 15;Rice v. Sanger, 144 U. S. 197, 12 Sup. Ct. 664;Rutland R. Co. v. Central Vermont R. Co., 159 U. S. 630, 638, 16 Sup. Ct. 113;In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291.

In the case at bar, it was argued in support of the jurisdiction of this court that, if an appeal had been taken from the final judgment of the inferior court to the supreme court of Wisconsin, that court, according to its uniform course of decisions, would have affirmed the judgment, upon the ground that its decision upon the first appeal was conclusive; that this court, according to the decision in Railroad Co. v. Ellis, 144 U. S. 458, 12 Sup....