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Statement of the Case.

and the record of the suit in the United States court, which was offered in evidence but excluded, exceptions being taken by the railroad company. From the judgment of the Circuit Court for Douglas County the railroad company appealed to the Supreme Court of the State, which, on November 17, 1891, affirmed it.

The opinion of the Supreme Court by Winslow, J., will be found reported in advance of the official series in 50 N. W. Rep. 397. The court, after stating the case, said:

“The Circuit Court held, in its rulings upon the proposed answer and in its judgment, in effect, that the decision of this court upon the former appeal was res adjudicata in this action. If this view was correct, then the judgment below must be sustained, because upon that appeal the question was fairly raised whether the county could lawfully donate the land in question to the railroad company, and it was decided by this court that it could not. It is vigorously contended by appellant's counsel that the rule of law is that a decision can only become res adjudicata when it is contained in a final judgment in the cause, and that the decision upon the demurrer being confessedly not a final judgment, but granting leave to plead over, it cannot be considered as res adjudicata, and authorities are cited which undoubtedly tend to support that contention. We shall not attempt to review the authorities nor reconcile conflicting decisions. It is sufficient to say that by repeated decisions it has become the settled law in this State that the decision of this court upon a demurrer is conclusive upon the questions legitimately involved, and is res adjudicata in that case.

Noonan v. Orton, 27 Wisconsin, 300; Lathrop v. Knapp, 37 Wisconsin, 307; Fire Dept. v. Tuttle, 50 Wisconsin, 552. It is true that this court has decided that an order of the Circuit Court upon a demurrer is not res adjudicata. This doctrine, however, is based upon the ground that such an order is reviewable by statute upon appeal from the judgment. Hackett v. Carter, 38 Wisconsin, 394. But the decision of this court upon a demurrer upon the questions properly involved cannot be reviewed by the Circuit Court, nor, indeed, by this court, save upon motion for rehearing. Such questions

Argument Against the Motion.

are finally decided and settled for that case, and, as between the parties to that litigation, for all time. This view of the law decides this case. The complaint charged the appellant's alleged title to be just what the proofs now before us show it to be, and this court, prior to the judgment in the United States court, finally decided that such alleged title was worthless. The question was no longer an open one, and the Circuit Court was right in ruling out the record of the action in the United States court, and rendering judgment for the plaintiff.”

A writ of error was thereupon sued out from this court, which the defendant in error moved to dismiss.

Mr. William F. Vilas for the motion.

Mr. A. H. Garland and Mr. H. J. May opposing.

If this court has not jurisdiction of this case, and shall dismiss the writ of error herein, we shall find ourselves confronted with the anomalous position of having two judgments — one of the Federal, the other of the state courts between the same parties and upon the same question, both final, but antagonistic to each other, simply because the state courts have disregarded, and, in so far as they could do so, nullified a valid decree or judgment of a Federal court without any other reason than it was within the discretion of the judge of the Douglas Circuit Court to deny the supplemental answer setting up the final decree of the Federal court. It seems to us that this important question, which was passed upon by the Supreme Court of Wisconsin, is reviewable here, inasmuch as it brings up for consideration and decision the validity and effect of decrees and judgments of the Federal courts under the laws of the United States. In other words, the railroad claims a right adjudged it by a Circuit Court of the United States — by a Federal court; and if this is not a Federal question we must despair of ever falling upon one; it brings up a right under the authority of the United States. Dupasseur v. Rochereau, 21 Wall. 130; Crescent Stock Co. v. Butchers' Union, 120 U. S. 141.

The equity jurisdiction of the Federal courts, fixed by the

Opinion of the Court.

Constitution and Statutes of the United States, is not safe in its enforcement in the States, if the state courts may in their discretion disregard the decrees of those United States courts, and this court could not review the action of the state courts. Payne v. Hook, 7 Wall. 425; Railway Co. v. Whitton, 13 Wall. 270, 285, et seq.

The answer of the plaintiff in error admits its incorporation under the laws of the United States, and alleges its authority under the act of Congress of July 2, 1864, to build a railroad in the State of Wisconsin, and to acquire and hold real estate therein, and to accept any grant, donation, etc., which might be conferred upon it. This is, therefore, an action against a corporation of the United States, and an action arising under the laws of the United States of which this court has jurisdiction. Pacific Railroad Removal Cases, 115 U. S. 1.

The very right to hold this land under the grant to the railroad is brought in question and the Federal question is patent.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

The motion to dismiss the writ of error must be sustained. The decision of the Supreme Court of Wisconsin rested upon an independent ground not involving a Federal question and broad enough to maintain the judgment. Hammond v. Johnston, 142 U. S. 73.

The Supreme Court held that by reason of its decision of May 20, 1890, when the case was presented to the court on the appeal of the railroad company from the order of the lower court upon demurrer, the rights of the parties were res adjudicata, and that it was itself, as the parties were, bound by its own former judgment. Its conclusion had been announced and its mandate had gone down, and it had no power upon a second appeal to review that judgment. This is the settled rule in Wisconsin; Lathrop v. Knapp, 37 Wisconsin, 307; Oshkosh Fire Department v. Tuttle, 50 Wisconsin, 552; and in this court; Clark v. Keith, 106 U. S. 464; Chafin v. Taylor, 116 U. S. 567; Peck v. Sanderson, 18 IIow. 42; Hick


man v. Fort Scott, 141 U. S. 415. Under these circumstances the judgment of the Supreme Court is not subject to review here.

The suit in the state court involving certain lots was commenced before the institution of the action in respect to other real estate in the Circuit Court of the United States, and the judgment of the Supreme Court of the State had become res adjudicata between the parties, before the decree was entered by the Circuit Court. The judgment before us was rendered in accordance with well-settled principles of general law, not involving any Federal question, and did not deny to the decree of the Circuit Court the effect which would be accorded under similar circumstances to the judgments and decrees of the state court. The writ of error is






No. 1508. Submitted February 29, 1892. - Decided April 11, 1892.

A suit was brought in the Supreme Court of New York against a railroad

corporation created by an act of Congress, to recover damages for personal injuries sustained by the plaintiff, who was a laborer on the road, from the negligence of the defendant. The suit was removed by the defendant into a Circuit Court of the United States, on the ground that it arose under the act of Congress. It was tried before a jury, and resulted in a verdict and judgment for the plaintiff for $4000. The defendant took a writ of error from the Circuit Court of Appeals, which affirmed the judgment. On a writ of error taken by the defendant from this court to the Circuit Court of Appeals, a motion was made, by the plaintiff, to dismiss or affirm: Held, (1) Under $ 6 of the act of March 3, 1891, c. 517, 26 Stat. 826, the

writ would lie, because the jurisdiction of the Circuit Court was not dependent entirely on the fact that the opposite parties to the suit were one of them an alien and the other a citizen of the United States, or one of them a citizen of one State and the other VOL. CXLIV-30

Statement of the Case.

a citizen of a different State, but was dependent on the fact that, the corporation being created by an act of Congress, the suit arose under a law of the United States, without reference to the

citizenship of the plaintiff'; (2) The decision of the Circuit Court of Appeals was not final, nor in

effect made final hy the act of 1891, as in Lau Ow Bev v. United

States, 144 U. S. 47; (3) As it did not appear by the record, that, on the trial in the Circuit

Court, the defendant made any objection to the jurisdiction of that court, and the petition for removal recognized the jurisdiction, it could not be said, as a ground for the motion to dismiss, that the defendant might have taken a writ of error from this court to the Circuit Court, under § 5 of the said act of 1891, and had, by failing to do so, waived its right to a review by this

court; (4) There was color for the motion to dismiss, and the judgment must

be affirmed on the ground that the writ was taken for delay only; (5) The main defence was contributory negligence on the part of the

plaintiff, and the court charged the jury that they had the right to take into consideration the fact that the foreman of the defendant told the plaintiff it was safe for him to cross, at the time, the bridge where the accident took place, through the plaintiff's being struck by a locomotive engine while he was crossing the bridge on foot. The question was fairly put to the jury, as to the alleged contributory negligence. The case was one for the jury.

On February 11, 1890, Dominick Amato brought an action in the Supreme Court of the State of New York, in the county of New York, against the Northern Pacific Railroad Company, a corporation created by an act of Congress, approved March 2, 1864, c. 217, 13 Stat. 365. The summons in the action was duly served on the defendant, and it appeared by attorney.

The complaint stated that the plaintiff was a resident of the city and county and State of New York; that on or about November 6, 1888, in or near the county of Burleigh, in the then Territory of Dakota, now State of North Dakota, through the negligence of the defendant and without negligence on his part, he was run over by an engine owned and operated by the defendant, from which he sustained injuries which caused him the loss of his leg; that on account of said injuries he was confined in a hospital for 7 months, and had sustained permanent injuries which made him unable to work, and had

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