[235]

the authority of the same, That from and after the passage of this Act said Railroad Company shall have power and authority to construct a branch of said road from some point on said road to any point on the Chattahoochee River, below the Town of Florence, in the County of Stewart, which said Company may deem most advisable and proper, under the rules and restrictions as they are now authorized to construct said Southwestern Railroad; Provided, That if said Company do not build the main trunk of said road to or below Fort Gaines within two years from the time that the same is completed to the point at which the said branch road, if commenced, may intersect, then said Company shall be liable to refund to the stockholders, now residing in Early and Randolph Counties, or their assigns, the amount of stock held by them, with interest from the time the same was paid.'

The road from Fort Valley to Columbus was built by the Muscogee Railroad Company, under a charter granted December 27, 1845, which contained a clause upon the subject of taxation, substantially like section 14 of the charter of the Southwestern Company. The two companies were afterwards consolidated, and, when the the case in which the State of Georgia appears as defendant in error was before this court on a former writ of error, it was decided that this road and that part of the road of the Southwestern Company which was built under the original charter, were exempt from taxation beyond one half of 1 per cent upon their annual net income. Southwestern R. R. Co. v. Georgia, 92 U. S. 676 [Bk. 23 L. ed. 762.]

The supreme court of the State has decided in both these cases that the roads from Americus to Albany, from Albany to Arlington and from Cuthbert to Eufaula were subject to the general laws of the State for the taxation of railroads, without regard to the exemption in the original charter of the Company. To reverse judgments to this effect these writs of error were brought.

There is no question now as to the exemption from general taxation of that part of the road built under the original charter. That we have already decided, and there is no dispute about it now. The language of the exempting clause is somewhat unusual. It is not that the Company or its stock shall be taxed in a certain way and otherwise exempt; but that the "Said railway and its appurtenances, and all property therewith connected, shall not be subject to be taxed higher," etc. This clearly means the railroad specified in the charter and none other. Possibly, if the Company had acquired the road between Americus and Smithville from the Florida & Georgia Company without any special limitation by the State upon the exemption of its own charter, that part of the Florida & Georgia road might have been brought under the exemption. But this was not done, for the State, while recognizing the transfer of the Florida and Georgia road, was careful to pro[236] vide that the road should be liable to pay, not only the same tax as the rest of the road of the Southwestern Railroad Company, "but such additional tax as the Legislature may hereafter impose." This is nothing less than an express reservation of power by the State to tax the part of the Southwestern Company's road be

tween Americus and Albany as other railroads in the State are taxed when there is no charter exemption.

The same is true of the road between Albany and Arlington, for the power to build that line is coupled with a reservation of the right to tax. Such is evidently the meaning of section 2 of the Act authorizing its construction.

The language of the authority to build the road from Cuthbert to Eufaula is somewhat different. There nothing is said about taxation; but that the original charter of the Company did not give the right to build this part of the road is shown by the fact that this amendment was deemed necessary. In building this extension or branch the company was placed under the rules and restrictions they were subjected to in building the original road; but that did not necessarily imply an exemption of this line from taxation to the same extent the old road was. That exemption was only for that road; and as the amending Act does not in terms or by fair implication apply the exemption to the additional road which was to be built under it, we must presume that nothing of the kind was intended and that the State was left free to tax that road like other property. No rule is better settled than that a contract of exemption from taxation is never to be presumed. A surrender of the power to tax when claimed "must be shown by clear and unambiguous language which will admit of no reasonable construction consistent with the reservation of the power." Delaware Railroad Tax, 18 Wall. 207 [85 U. S. bk. 21, L. ed. 888.]

This disposes of all the federal questions in the two cases; and as they were rightly decided in the court below, it follows that the judg ments must be affirmed without an examination of the other errors assigned which involve questions of state law only. Murdock v. Memphis, 20 Wall. 590 [87 U. S. bk. 22, L. ed. 429.1 If the roads are not exempt under their charters from the operation of the general laws of the State for the taxation of railroads, the errors, if any, of the court below in fixing the value and ascertaining the amount of tax under the [ law are not reviewable here. No complaint is made of the law itself, if it applies to this Company, so far as the disputed portions of its road are concerned. The administration of the law by the officers or the courts of the State involves no questions of which we can take jurisdiction. The law being valid the courts of the State have exclusive jurisdiction, appellate or otherwise, of all cases brought before them involving proceedings for its enforcement.

The judgment in each of the cases is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. &

[177] WILLIAM H. RENAUD, Substituted for ISAAC L. WILBUR, Deceased, Piff. in Err.,

v.

bott could have been taken advantage of in a motion on arrest of judgment, if the judgment had been against the defendant.

Gilman v. Rives, 10 Pet. 298 (35 U. S. bk. 9,

3 Upon writ of error to the highest court of a State, this court takes judicial notice of the law of another State, only where that court takes judicial notice of it by the local law.

4. Under section 905, R. S., if a joint judgment reCovered in a state court against two, of whom but one was served, is enforceable within that State against him severally, it will sustain an action against him in another State, whatever rule may there prevail as to similar domestic judgments.

[No. 23.]

Argued Apr. 7, 8, 1885. Decided Jan. 4, 1886.

IN ERROR to the Supreme Court of the State of New Hampshire.

The history and facts of the case sufficiently appear in the opinion of the court.

Mesers. William A. Maury, Thomas J. Semes and Robert Mott, for plaintiff in error: The Supreme Court of New Hampshire refuses to enforce a judgment which, if rendered there, would be invalid, however valid it may be in the state courts of the State which tried and determined the cause.

The judgment of a state court should have the same credit, validity and effect in every ther court of the United States which it had in the state court where it was pronounced. Hampton v. McConnel, 3 Wheat. 234 (16 U. 8. bk. 4. L. ed. 378); Breedlove v. Nicolet, 7 Pet. 42 (32 U. S. bk. 8, L. ed. 787).

A Louisiana court would not listen for one moment to the defendant in error when he says that the judgment rendered in New Orleans, as to him, was void, because it was pronounced indly against him who was cited and his partner who was not cited.

Gaiennie v. Akin, 17 La. 44; Montague v. W, 30 La. Ann, 55.

Mr. Samuel C. Eastman, for defendant in error:

The Supreme Court of New Hampshire dedd the judgment invalid for want of juristion. Whether the state court made or did make a mistake as to the particular reason want of jurisdiction, still, if the want of sdiction plainly appears from the record there is no federal question, for the state court erd and properly should have decided as it

There was no service on E. A. Abbott. The judgment as to him is therefore a nullity.

D'Arcy v.Ketchum, 11 How. 165 (52 U. S. bk. 13, L. ed. 648); Public Works v. Columbia College, 17 Wall. 521 (84 U. S. bk. 21, L. ed. 087); Hall v. Lanning, 91 U. S. 167 (Bk. 23, L. ed. 273).

The judgment declared on being void as to one of the defendants is void as to both, and cannot be the foundation of an action in any other State.

Hall v. Williams, 6 Pick. 232; Holbrook v. Murray, 5 Wend. 161; Richards v. Walton, 12 Johns. 434; Rangely v. Webster, 11 N. H. 299; Smith v. Smith, 17 Ill. 482; Buffum v. Ramsdell, 55 Me. 252; Knapp v. Abell, 10 Allen, 485; Mackey v. Gordon, 34 N. J. L. 286; Hanley v. Donoghue, 59 Md. 239; Freem. Judg. § 136.

This court has impliedly, if not expressly, adopted the principle of these cases.

Gilman v. Rives, 10 Pet. 298 (35 U. S. bk. 9, L. ed. 432); Thompson v. Whitman, 18 Wall. 469 (85 U. S. bk. 21, L. ed. 901).

Mere error makes a judgment voidable. Want of jurisdiction makes it void.

Eaton v. Badger, 33 N. H. 237; Carlton v. Washington Ins. Co. 35 N. H. 162; Judkins v. Union Mut. F. Ins. Co. 37 N. H. 470; Conery v. Rotchford, 34 La. Ann. 520; Boswell's Lessee v. Otis, 9 How. 336 (50 U. S. bk. 13, L. ed. 164); Bischoff v. Wethered, 9 Wall. 812 (76 U.S. bk. 19, L.ed. 829); Laurent v. Beelman, 30 La. Ann. 363.

It has been uniformly held by this court that a writ of error sued out by one of two persons, against whom a joint judgment is rendered, without a summons and severance or equivalent proceeding must be dismissed.

Feibelman v. Packard, 108 U. S. 14 (Bk. 27, L.ed. 634).

This is the rule of the common law.
Comyn, Dig. pl. 3, B. 9.

The New Hampshire court is not estopped to so far examine the facts and the record as to inquire whether the court in Louisiana actually had jurisdiction to pronounce the judgment it did.

Hall v. Lanning, 91 U. S. 160 (Bk. 23, L. ed. 271); Pennoyer v. Neff, 95 U. S. 714 (Bk. 24, L. ed. 565); Ins. Co. v. Bangs, 103 U. S. 435 (Bk. 26, L. ed. 580); St. Clair v. Cox, 106 U. S. 353, and Pana v. Bowler, 107 U. S. 545 (Bk. 27, L. ed. 223, 430).

[235]

The same is true of the road between Albany and Arlington, for the power to build that line is coupled with a reservation of the right to tax. Such is evidently the meaning of section 2 of the Act authorizing its construction.

The road from Fort Valley to Columbus was built by the Muscogee Railroad Company, under a charter granted December 27, 1845, which contained a clause upon the subject of taxation, substantially like section 14 of the charter of the Southwestern Company. The two companies were afterwards consolidated, and, when the the case in which the State of Georgia appears as defendant in error was before this court on a former writ of error, it was decided that this road and that part of the road of the Southwestern Company which was built under the original charter, were exempt from taxation beyond one half of 1 per cent upon their annual net income. Southwestern R. R. Co. v. Georgia, 92 U. S. 676 [Bk. 23 L. ed. 762.]

The supreme court of the State has decided in both these cases that the roads from Americus to Albany, from Albany to Arlington and from Cuthbert to Eufaula were subject to the general laws of the State for the taxation of railroads, without regard to the exemption in the original charter of the Company. To reverse judgments to this effect these writs of error were brought.

There is no question now as to the exemption from general taxation of that part of the road built under the original charter. That we have already decided, and there is no dispute about it now. The language of the exempting clause is somewhat unusual. It is not that the Company or its stock shall be taxed in a certain way and otherwise exempt; but that the "Said railway and its appurtenances, and all property therewith connected, shall not be subject to be taxed higher, ," etc. This clearly means the railroad specified in the charter and none other. Possibly, if the Company had acquired the road between Americus and Smithville from the Florida & Georgia Company without any special limitation by the State upon the exemption of its own charter, that part of the Florida & Georgia road might have been brought under the exemption. But this was not done, for the State, while recognizing the transfer of the Florida and Georgia road, was careful to pro[236] vide that the road should be liable to pay, not only the same tax as the rest of the road of the Southwestern Railroad Company, "but such additional tax as the Legislature may hereafter impose." This is nothing less than an express reservation of power by the State to tax the part of the Southwestern Company's road be

The language of the authority to build the road from Cuthbert to Eufaula is somewhat different. There nothing is said about taxation; but that the original charter of the Company did not give the right to build this part of the road is shown by the fact that this amendment was deemed necessary. In building this extension or branch the company was placed under the rules and restrictions they were subjected to in building the original road; but that did not necessarily imply an exemption of this line from taxation to the same extent the old road was. That exemption was only for that road; and as the amending Act does not in terms or by fair implication apply the exemption to the additional road which was to be built under it, we must presume that nothing of the kind was intended and that the State was left free to tax that road like other property. No rule is better settled than that a contract of exemption from taxation is never to be presumed. A surrender of the power to tax when claimed "must be shown by clear and unambiguous language which will admit of no reasonable construction consistent with the reservation of the power." Delaware Railroad Tax, 18 Wall. 207 [85 U. S. bk. 21, L. ed. 888.]

This disposes of all the federal questions in the two cases; and as they were rightly decided in the court below, it follows that the judg ments must be affirmed without an examination of the other errors assigned which involve ques tions of state law only. Murdock v. Memphis. 20 Wall. 590 [87 U. S. bk. 22, L. ed. 429.] If the roads are not exempt under their charters from the operation of the general laws of the State for the taxation of railroads, the errors, if any, of the court below in fixing the value and ascertaining the amount of tax under the [237] law are not reviewable here. No complaint is made of the law itself, if it applies to this Company, so far as the disputed portions of its road are concerned. The administration of the law by the officers or the courts of the State involves no questions of which we can take jurisdiction. The law being valid the courts of the State have exclusive jurisdiction, appellate or otherwise, of all cases brought before them involving proceedings for its enforcement.

The judgment in each of the cases is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. &

115 U.S.

WILLIAM H. RENAUD, Substituted for ISAAC L. WILBUR, Deceased, Plff. in Err.,

v.

EDWARD A. ABBOTT, Admr. of JOSEPH 8. ABBOTT, Deceased.

(See S. C. Reporter's ed. 277-288.)

Practice-objection to service of citation-death of plaintiff-substitution-writ of error to state court-judicial notice of laws of other States-judgments of courts of other Stater

bott could have been taken advantage of in a motion on arrest of judgment, if the judgment had been against the defendant.

Gilman v. Rives, 10 Pet. 298 (35 U. S. bk. 9, L. ed. 432).

There is therefore no occasion to reverse the judgment of the state court, whether right or wrong.

To maintain a suit on a judgment in any other State than that where rendered, when there was no appearance, the record must show service on the defendants within the limits of the State whose court is claiming the jurisdiction.

3. Upon writ of error to the highest court of a State, this court takes judicial notice of the law of another State, only where that court takes judicial notice of it by the local law.

4. Under section 905, R. S., if a joint judgment recovered in a state court against two, of whom but one was served, is enforceable within that State against him severally, it will sustain an action against him in another State, whatever rule may there prevail as to similar domestic judgments.

[No. 23.]

Argued Apr. 7, 8, 1885. Decided Jan. 4, 1886.

IN ERROR to the Supreme Court of the State

of New Hampshire.

The history and facts of the case sufficiently appear in the opinion of the court.

Messrs. William A. Maury, Thomas J. Semmes and Robert Mott, for plaintiff in error: The Supreme Court of New Hampshire refuses to enforce a judgment which, if rendered there, would be invalid, however valid it may be in the state courts of the State which tried and determined the cause.

The judgment of a state court should have the same credit, validity and effect in every other court of the United States which it had in the state court where it was pronounced. Hampton v. McConnel, 3 Wheat. 234 (16 U. S. bk. 4, L. ed. 378); Breedlove v. Nicolet, Pet. 429 (32 U. S. bk. 8, L. ed. 787).

A Louisiana court would not listen for one moment to the defendant in error when he says that the judgment rendered in New Orleans, as to him, was void, because it was pronounced jointly against him who was cited and his partner who was not cited.

Gaiennie v. Akin, 17 La. 44; Montague v. Weil, 30 La, Ann, 55.

Mr. Samuel C. Eastman, for defendant in error:

The Supreme Court of New Hampshire decided the judgment invalid for want of jurisdiction. Whether the state court made or did not make a mistake as to the particular reason for want of jurisdiction, still, if the want of jurisdiction plainly appears from the record there is no federal question, for the state court could and properly should have decided as it did.

There was no service on E. A. Abbott. The judgment as to him is therefore a nullity.

D'Arcy v.Ketchum, 11 How. 165 (52 U. S. bk. 13, L. ed. 648); Public Works v. Columbia College, 17 Wall. 521 (84 U. S. bk. 21, L. ed. 687); Hall v. Lanning, 91 U. S. 167 (Bk. 23, L. ed. 273).

The judgment declared on being void as to one of the defendants is void as to both, and cannot be the foundation of an action in any other State.

Hall v. Williams, 6 Pick. 232; Holbrook v. Murray, 5 Wend. 161; Richards v. Walton, 12 Johns. 434; Rangely v. Webster, 11 N. H. 299;

Smith & Smith, 17 111. 482; Buffum v. Ramsdell, 55 Me. 252; Knapp v. Abell, 10 Allen, 485; Mackey v. Gordon, 34 N. J. L. 286; Hanley v. Donoghue, 59 Md. 239; Freem. Judg. § 136.

This court has impliedly, if not expressly, adopted the principle of these cases.

Gilman v. Rives, 10 Pet. 298 (35 U. S. bk. 9, L. ed. 432); Thompson v. Whitman, 18 Wall. 469 (85 U. S. bk. 21, L. ed. 901).

Mere error makes a judgment voidable. Want of jurisdiction makes it void.

Eaton v. Badger, 33 N. H. 237; Carlton v. Washington Ins. Co. 35 N. H. 162; Judkins v. Union Mut. F. Ins. Co. 37 N. H. 470; Conery v. Rotchford, 34 La. Ann. 520; Boswell's Lessee v. Otis, 9 How. 336 (50 U. S. bk. 13, L. ed. 164); Bischoff v. Wethered, 9 Wall. 812 (76 U.S.bk. 19, L.ed. 829); Laurent v. Beelman, 30 La. Ann. 363.

It has been uniformly held by this court that a writ of error sued out by one of two persons, against whom a joint judgment is rendered, without a summons and severance or equivalent proceeding must be dismissed.

Feibelman v. Packard, 108 U. S. 14 (Bk. 27, L. ed. 634).

This is the rule of the common law.
Comyn, Dig. pl. 3, B. 9.

The New Hampshire court is not estopped to so far examine the facts and the record as to inquire whether the court in Louisiana actually had jurisdiction to pronounce the judgment it did.

Hall v. Lanning, 91 U. S. 160 (Bk. 23, L. ed. 271); Pennoyer v. Neff, 95 U. S. 714 (Bk. 24, L. ed. 565); Ins. Co. v. Bangs, 103 U. S. 435 (Bk. 26, L. ed. 580); St. Clair v. Cox, 106 U. S. 353, and Pana v. Bowler, 107 U. S. 545 (Bk. 27, L. ed. 223, 430).

The objection, where there is any substantial defect in the writ of error, may be taken at any time before judgment.

Wilson v. L. & F. Ins. Co. 12 Pet. 140 (37 U. S. bk. 9, L. ed. 1032).

At common law, by the death of one of the parties, the action abated, and the court had no further jurisdiction. This is the law in New Hampshire.

Pettingill v. Butterfield, 45 N. H. 195.

Mr. Justice Matthews delivered the opinion of the court:

The writ of error in this case was sued out and allowed by the Chief Justice of the Supreme Court of New Hampshire on June 13, 1882, returnable to October Term, 1882, of this court. The transcript of the record was filed here July 14, 1882, and the defendant in error entered his appearance, through counsel, on July 28, 1882, which, although special in terms, was not limited to any particular purpose.

At October Term, 1883, a motion was filed to dismiss the cause on two grounds: 1, because the citation had been served on the defendant in error in Massachusetts by the marshall of that district; and 2, because the present plaintiff in error had been improperly substituted as successor to the plaintiff in the judgment sought to be reviewed. This motion to dismiss, although submitted to the court at that term, was postponed until the hearing on the merits. So far as the first ground is involved it comes too late. The alleged irregularity in the service of the citation could, at any rate, only have been taken advantage of by a motion to dismiss, made promptly, on an appearance limited to that special purpose, and was cured by such an appearance as was entered in this case. U. S. v. Yates, 6 How. 608 [47 U. S. bk. 12, L. ed.576]; Buckingham v. McLean, 13 How. 150 [54 U. S. bk. 14, L. ed. 90].

The judgment sought to be reviewed was rendered in favor of the defendant, in a suit brought by Isaac L. Wilbur upon a judgment rendered in his favor as syndic of his creditors under the laws of Louisiana, in the Fifth District Court of New Orleans, in that State. Wilbur having died in July, 1881, after the judgment against him in the Supreme Court of New Hampshire, William H. Renaud thereupon, on June 12, 1882, on his petition, showing that he had been appointed under the laws of Louisiana to succeed Wilbur as syndic of his creditors, was substituted as plaintiff in the judgment and allowed to prosecute a writ of error to this court. It was the province of the Supreme Court of New Hampshire to permit this substitution, and its action in doing so is not open to objection by the defendant in error in this court. We receive the transcript of the record in the cause as it is certified to us by that court in answer to the precept of the writ of error allowed and issued to that end. When brought here it is open to examination only for the purpose of deciding whether it contains a

The action was in debt brought by Wilbur upon a judgment alleged to have been recovered by him in the Fifth District Court of the City of New Orleans, in the State of Louisiana, against Joseph S. Abbott, then in full life, and one Edward A. Abbott, for the sum of $23,383.69, with interest thereon from November 1, 1862, as damages in a certain cause then pending in said court between the said plaintiff and the said Joseph S. Abbott and Edward A. Abbott, as copartners under the name of J. S. & E. A. Ábbott, and for costs of suit. Edward A. Abbott, as administrator of Joseph S. Abbott, alone was sued. The plea was nul tid record.

The plaintiff offered in evidence a duly certified transcript of the record of the judgment sued on. From that it appeared that the citation and copy of the petition was returned by the sheriff, served on J. S. Abbott, one of the defendants, personaliy, on December 28, 1866. No service on the other defendant appears to have been made. Judgment was afterwards entered therein as follows: "I. L. Wilbur, Syndic, etc.,

V.

No. 16,987.

J. S. & E. A. Abbott. On motion of E. C. Mix, of counsel for plaintiff, and on introducing due proof of the claim of said plaintiff,

[2

It is ordered and adjudged that the default herein entered on the eleventh of January, 1867, be now confirmed and made final; and that plaintiff, I. L. Wilbur, in his capacity as syndic of his creditors and of the creditors of Wilbur and Borge, recover of the defendants, Joseph S. and Edward A. Abbott, who reside in Concord, in the State of New Hampshire, are commercial partners there, doing business under the style and firm of J. S. & E. A. Abbott, in solido, the sum of twenty-three thousand three hundred and eighty-three with legal interest from the first of November, 1862, until paid, and costs of suit. Judgment rendered 19th January, 1867. [ Signed 24th January, 1867. (Signed) Chas. Leaumont, Judge." The defendant objected to this transcript as evidence, on the ground that the record disclosed a judgment that was void because it was a joint judgment against two with service process upon one only.

dollars,

But the plaintiff supplemented the proof by offering in evidence the transcript of another judgment rendered in the same court, in a proceeding numbered 17,608, in which Joseph S. Abbott and Edward A. Abbott were plaintiffs and the said Isaac L. Wilbur was defendant, being a suit in which the plaintiffs sought to obtain a decree of nullity of the judgment against them in the former action numbered 16,987.

The petition in this suit of nullity set forth