for whose benefit ut universi this reconventional demand is now prosecuted." "For surely the plaintiff cannot be heard to say that Watson and Pope have perpe The damages were itemized and alleged to trated upon it damages resulting from a loss have amounted to $3,847.15. The answer concluded as follows: "Wherefore said John W. Watson prays that said plaintiff's petition be dismissed; that he be quieted in his position as receiver; that his appointment be ratified and confirmed as prayed for by said Louisiana Printing & Publishing Company and by a large majority of its stockholders and its board of directors, and that, as the representative of the creditors of said company, he have judgment on his reconventional demand against plaintiff in the sum of $3,847.15 and all costs of this suit." Upon the hearing judgment was rendered as follows: "1st. In favor of John W. Watson and Frank H. Pope, rejecting and dismissing the suit of the Remington Paper Company for damages. "2d. That the demand of the Remington Paper Company against John W. Watson, Frank H. Pope, and the Louisiana Printing & Publishing Company, represented by John 49] W. *Watson, receiver, of the nullity of the order appointing said Watson receiver, etc., be also rejected and dismissed, and that said appointment and order be maintained. 3d. That the reconventional demand for money claimed by Watson as receiver herein be dismissed as of nonsuit, and that the Remington Paper Company be condemned to pay all costs of this suit." The supreme court affirmed the judgment (49 La. Ann. 1296), and the case was brought here. The supreme court, after reciting the proceedings taken by the respective parties and stating their contentions, said that the record showed that the Remington Company did not comply with the order of the United States circuit court, "but, on the contrary, this action of nullity and claim for damages was resorted to instead of such an application," and it was held that the action depended necessarily upon a claim for damages, and that the company had no such claim. It was further said: "In the first place, addressing ourselves to the question of damages, we are of opinion that the plaintiff was plainly at fault in not employing the proper means to protect its own rights; (1) first, because it used no effort to avail itself of the permission granted by the circuit court whereby the seizure might have been retained on the property; (2) second, because it took no means or proceedings looking to the protection and preservation of its alleged vendors' lien upon the property after it had passed into the custody and control of the receiver, either by injunction against a sale by the receiver or a third opposition claiming the proceeds of sale, under a separate appraisement and sale. "In our view, such measures could have been easily resorted to on the part of the plaintiff, without prejudice to this or its circuit court suit, and, failing in this, an insurmountable obstacle has been raised to its claim for damages. and injury it has occasioned through its own fault. "The plaintiff's recourse against property stricken by a vendor's *lien was just as effica-[450] cious against it in the hands of the receiver as it was in that of the marshal, and had it made proper and seasonable application to the judge a quo, possibly he might have permitted the marshal to retain in his possession the property seized under the writ of attachment in the circuit court. However vain and nugatory such an effort may have proven, it was none the less its duty to have made the effort at least. "Surely the receiver cannot be said to have committed a wrong or trespass upon the plaintiff's rights by advertising and making a sale of corporate assets in pursuance of an order of court to pay debts, especially when such sale was neither enjoined nor opposed by it. "Presumably the proceeds of the sale are yet in the hands of the receiver for distribution according to law, and plaintiff can exercise its rights thereon. "In our opinion, this is not a case in which we are called upon to examine and scrutinize the legality of the appointment of a receiver, for the reason that the complaining creditor has not suffered any injury thereby and is itself seeking a preference. "We think the ends of justice would be best subserved by preserving and maintaining the status quo." The assignments of error are somewhat involved in statement, but they are based on the ground that the order appointing Watson receiver was null and void because the ownership of property in the Louisiana Printing & Publishing Company, the debtor of plaintiff, "could not be devested to the prejudice of creditors on an arbitrary order without due process of law," and the use of such order to obtain the ruling of the United States circuit court, which directed the United States marshal to restore to him the property attached, deprived the plaintiff in error of a right without due process of law, and that therefore the judgment of the lower court was erroneous. The appointment of a receiver to take possession of the property of an insolvent corporation upon the petition of a creditor is certainly "due process." This, of course, is not denied, but the invalidity of the order[451] of appointment is asserted because it was made ex parte, and because Watson had not fully qualified. It is hence argued that the appointment was a nullity-constituted "no legal obstacle" to the proceedings in the United States circuit court. This view was not entertained by that court, but, on motion of Watson, the court ordered the property which had been attached restored to him and remitted the plaintiff (plaintiff in error here) to the state court. Its order was "that the marshal restore the property seized in this court under the writs of attachment and sequestration to John W. Watson, receiver, unless within five days the plaintiff applies for and ultimately receives authority from the civil district court which appointed Watson or from the appellate court to hold same under said writs." If this was error its review cannot be had on this record. The plaintiff did not apply to "the civil district court which appointed Watson," the supreme court in its opinion says, but brought an action for nullity of the order of appointment under the Code of the state (Code of Pr. of La. arts. 604 et seq.) and for damages. The action was regularly proceeded with, and was determined against plaintiff in error on grounds which did not involve Federal questions, and therefore it is not within our power to review the judgment of the supreme court of the state. The plaintiff in error thus sought in the state court and was given opportunity to litigate the rights claimed by it and it cannot complain that the guaranties of the Constitution of the United States were denied because the litigation did not result successfully. Central Land Co. v. Laidley, 159 U. S. 112 [40: 95]; Walker v. Sauvinet, 92 U. S. 80 [23: 678]; Head v. Amoskeag Mfg. Co. 113 U. S. 9, 26 [28: 889, 895]; Morley v. Lake Shore & M. S. Railroad Co. 146 U. S. 162, 171 [36: 925, 930]; Bergemann v. Backer, 157 U. S. 655 [39: 845]. It follows that this writ of error cannot be maintained. The rule was announced in Eustis v. Bolles, 150 U. S. 370 [37: 1113], "that when we find it unnecessary to decide any Federal 2]*question, and when the state court has based its decision on a local or state question, our logical course is to dismiss the writ of error." See also St. Louis, C. G. & Fort Smith R. Co. V. Missouri [Merriam], 156 U. S. 478 [39: 502]; Hamblin v. Western Land C. 147 U. S. 531 [37: 267]; Castillo v. McConnico, 168 U. S. 674 [42: 622]. Writ of error dismissed. on the ground that said sentence was void The facts are stated in the opinion. *Mr. Chief Justice Fuller delivered the[452] opinion of the court: Ward was tried and found guilty before of the United States for the northern dis trict of Texas, for "having in his possession By the act of February 9, 1898 (30 Stat. Mr. Justice White took no part in this and while the Senate was still in ses decision. Ex parte HENRY WARD. Where a person is convicted by a judge de facto, [Original. No number.] Submitted February 20, 1899. Decided APPLICATION for leave to file petition sion; and argued that the appointment could And it is further contended that the Presi mission invest an appointee with any por- WAY COMPANY, Appt., v. quires that judges of the United States | THIRD STREET & SUBURBAN RAIL-[457] We need not, however, consider the elabo- In McDowell v. United States, 159 U. S. 596 [10: 271], one of the circuit judges in the fourth circuit designated the judge of one of the district courts in North Carolina to hold a term in South Carolina, and his power to act was challenged by an accused on his trial and before sentence. The cause was carried to the court of appeals for that circuit, which certified questions to this court. We decided that whether existing statutes authorized the designation of the North Carolina district judge to act as district judge in South Carolina was immaterial, since he must be held to have been a judge de facto, if not de jure, and his actions as such so far as they affected other persons were not open to question. Cocke v. Halsey, 16 Pet. 71, 85, 86 [10: 891, 896]; Hussey v. Smith, 99 U. S. 20, 24 [25: 314, 315]; Norton v. Shelby County, 118 U. S. 425, 445 [30: 178, 187]; Ball v. United States, 140 U. S. 118, 128, 129 [35 L. ed. 377, 381, 382]. MEYER LEWIS. (See 8. C. Reporter's ed. 457-460.) Decree of circuit court of appeals, when final, A decree of the circuit court of appeals in a case in which the jurisdiction at the outset depended on diversity of citizenship is final, even if another ground of jurisdiction was alleged in a supplemental bill by which a new defendant was made a party. [No. 212.] Submitted March 10, 1899. Decided March 1899. 20, APPEAL from a decree of the United States Circuit Court of Appeals for the Ninth Circuit affirming the decree of the Cir cuit Court of the United States for the Dis trict of Washington for the foreclosure of mortgage and sale of mortgaged premises, in a suit by Meyer Lewis against the Third Street & Suburban Railway Company. Appcal dismissed. Sec same case below, 48 U. S. App. 273. Statement by Mr. Chief Justice Fuller: This was a supplemental bill of complaint filed October 9, 1895, in the circuit court of the United States for the district of Washington. The original bill does not appear in the record, but the supplemental bili alleged "Meyer Lewis, a citizen of the city and county of San Francisco in the state of California, with leave of court first had and obtained, brings this his suppleruental bill, against the Third Street & Suburban Railway Company, a corporation duly organized and existing under the laws of the state of Washington, defendant, with its principal place of business in the city of Seattle, in said state; the original bill herein being brought by this plaintiff against Western Mill Company, a corporation organized and existing under the laws of the state of Washington, with its principal place of business in Seattle, in said state, John Leary and J. W. Edwards, citizens of Washington and residents of Seattle, James Oldfield, citizen of Washington and a resident of Seattle, Malcolm McDonald, a citizen of Washington, and a resident of Fort Blakely, in said state the city of Seattle, a municipal corporation duly The result of the authorities is that organized and existing under the laws of the the title of a person acting with color of state of Washington, Washington Savings [458] authority, even if he be not a good officer Bank, a corporation duly organized and exin point of law, cannot be collaterally at-isting under the laws of Washington, with tacked, and as Judge Meek acted, at least, under such color, we cannot enter on any discussion of propositions involving his title to the office he held. Leave denied. 766 its principal place of business in Seattle, in said state, and other defendants, against whom decrees pro confesso have been entered in the above-entitled cause prior to the bringing of this supplemental bill." 173 U. S. might remain after the application on the mortgage of the proceeds from the sale. And set forth in paragraph one: "That at all times hereinafter mentioned the defendant, Third Street & Suburban Rail- The case was carried on appeal to the cirway Company, was and it now is a corpora- cuit court of appeals for the ninth circuit, tion, duly organized and existing under and and the decree below was by that court afby virtue of the laws of the state of Wash-firmed. 48 U. S. App. 273. And from its ington, with its principal place of business decree this appeal was allowed. in the city of Seattle, in said state." The supplemental bill then stated that the Western Mill Company, in May, 1884, and certain other defendants as sureties, made and delivered to plaintiff their note, to seoure the payment of which, and the interest thereon and attorneys' fees, it executed a certain mortgage, which plaintiff sought by his bill to foreclose. The eighth paragraph was as follows: "That on or about the 14th day of October, 1891, the defendant, Western Mill Company, mortgagor herein, by its certain deed of sale, sold said mortgaged premises and every part thereof to the Ranier Power & Railway Company, a corporation organized under the laws of Washington, and having its principal place of business in Seattle; that thereafter, and on or about the 13th day of February, 1895, in the cause of A. P. Fuller v. The Ranier Power & Railway Company, No. - then pending before this honorable court, Eben Smith, Esq., the duly appointed, qualified, and acting master in chancery in said cause, made, executed, and delivered to A. M. Brockes, Angus McIntosh, and Frederick Bausman, purchasers of said premises, at a sale theretofore had, to satisfy a decree in said cause theretofore rendered by this court, a deed of sale to said mortgaged premises and each and every part thereof; that thereafter, on the 12th day of February, 1895, for a valuable consideration, said Angus McIntosh, A. M. Brookes, and Frederick Bausman [459]duly bargained and sold *by their deed of sale, their right, title, and interest in and to said premises, and every part thereof to the Third Street & Suburban Railway Company, defendant herein, who now claims some interest in or lien upon said mortgaged premises through said deed of purchase, so made subsequent to the commencement of plaintiff's action, but that said interest in or lien upon said property is subsequent, subject, and inferior to the lien of plaintiff's mortguge." Thereupon plaintiff prayed judgment against the parties to the note for the sum alleged to be due with interest and attorneys' fees; that a decree for the sale of the mortgaged premises be entered, the proceeds to be applied in payment of the amount found due on the note and mortgage; that the railway company, and all persons claiming under it, be barred and foreclosed from setting up any claim or equity therein thereafter; and that plaintiff have judgment over for any deficiency on the sale. The defendant, the railway company, answered; a demurrer was sustained to its answer; and a decree was entered against the parties to the note for the amount due thereon and for the sale of the premises mortgaged, with judgment against them for any deficiency; and also for the distribution of any surplus that] Mr. Frederick Bausman for appellant. Messrs. J. W. Blackburn, Jr., and George E. Hamilton for appellee. *Mr. Chief Justice Fuller delivered the[458] opinion of the court: Although the record does not contain the original bill, it is apparent that the jurisdiction of the circuit court was invoked on the ground of diverse citizenship, and that the interest of appellants in the mortgaged[460 premises was acquired after the commencement of the action. This supplemental bill made appellant a party defendant as claiming an interest, but the jurisdiction still rested on diversity of citizenship. The decree of the circuit court of appeals was, therefore, made final by the statute, and the appeal cannot be sustained. But it said that because plaintiff saw fit to set forth the manner in which appellant obtained its interest, and it appeared that appellant claimed under a conveyance from the purchasers at a sale made pursuant to a decree of the circuit court, the jurisdiction was not entirely dependent on the citizenship of the parties. The averments, however, in respect to the acquisition of its interest by appellant, were no part of plaintiff's case, and if there had been no allegation of diverse citizenship the bill unquestionably could not have been retained. The mere reference to the sale and foreclosure could not have been laid hold of to maintain jurisdiction on the theory that plaintiff's cause of action was based on some right derived from the Constitution or laws of the United States. It is thoroughly settled that under the act of August 13, 1888, the circuit court of the United States has no jurisdiction, either original or by removal from a state court, of a suit as one arising under the Constitution, laws, or treaties of the United States, unless that appears by the plaintiff's statement to be a necessary part of his claim. Tennessee v. Union & Planters' Bank, 152 U. S. 454 [38: 511]; Metcalf v. Watertown, 128 U. S. 586, 589 [32: 543, 544]; Colorado Central Consol. Min. Company v. Turck, 150 U. S. 138 [37: 1030]. If it does not appear at the outset that the suit is one of which the circuit court at the time its jurisdiction is invoked could properly take cognizance, the suit must be dismissed; and lack of jurisdiction cannot be supplied by anything set up by way of defense. And so when jurisdiction originally depends on diverse citizenship the decree of the circuit court of appeals is final, though another ground of jurisdiction may be developed in the course of the proceedings. Ex parte Jones, 164 U. S. 691 [41: 601]. Appeal dismissed. was also insisted that the bonds were authorized under sections 1996 to 2000 of the Code of North Carolina, as enacted in 1869, and subsequently ratified in 1883; also that the charter of the railroad company, as amended in 1879, and again in 1881, authorized the issuing of the bonds. The Federal question-construction of the Con- bonds were in fact issued in 1890, and therestitution and laws of a state. 1. A Federal question which will support a Issued, although it had held the statute valid upon the Constitution and laws of the state. [No. 642.] fore subsequent to all the legislation above referred to. The bonds recited on their face that they were issued under the act of 1879. As grounds for their contention that the bonds were invalid, the plaintiffs below asserted that neither the above-mentioned act of 1879, nor the amended act of 1881, had been constitutionally passed; that the bonds were not issued under the ordinance adopted by the constitutional convention; and that by the doctrine of estoppel the bondholders could not claim that the bonds were issued under such ordinance or by virtue of any other authority than that recited on their face, viz., the act of 1879. The supreme court of the state held that Bubmitted February 20, 1899. Decided the bonds were void because the acts un March 20, 1899. I State North ment of that court in an action brought by Mr. Richard N. Hackett for plaintiff in [461] *Mr. Justice Peckham delivered the opinion of the court: der which they were issued were not valid laws, not having been passed in the manner directed by the Constitution. The court furby the above sections of the Code, and that as they purported, by recitals on their face, to have been issued under the act of 1879, the bondholders were estopped from setting up any other authority for their issue, such as the ordinance of the constitutional convention above mentioned. The bondholders have brought the case here, claiming that by the decision below their contract has been impaired, because, as they allege, the supreme court of the state had decided before these bonds were issued that the acts under which they were issued were valid laws and authorized their issue, and that in holding the contrary after the issue of these bonds the state court had impaired the obligation of the contract, *and its[463] decision raised a Federal question proper for review by this court. This action was commenced in the superior court of Wilkes county in the state of But in this case we have no power to exNorth Carolina, by the board of commission-amine the correctness of the decision of the ers of Wilkes County and C. C. Wright, against Clarence Call. Mr. Wright was a taxpayer of the county, while the defendant Call was its treasurer. The action was brought to test the validity of certain bonds issued by the county of Wilkes in payment of its subscription to the stock of the Northwestern North Carolina Railroad Company. The defendants Turner and Wellborn were the owners of some of the bonds, and after the bringing of this action they were, on their own motion, brought in as parties defendant, and they invited all other bondholders to come in and join them in resisting the action. supreme court of North Carolina, because, this being a writ of error to a state court, we cannot take jurisdiction under the allegation that a contract has been impaired by a decision of that court, when it appears that the state court has done nothing more than construe its own Constitution and statutes existing at the time when the bonds were issued, there being no subsequent legislation touching the subject. We are therefore bound by the decision of the state court in regard to the meaning of the Constitution and laws of its own state, and its decision upon such a state of facts raises no Federal question. Other principles obtain when the writ of error is to a Federal court. [462] *It was claimed by the holders of the bonds that authority for their issue ex- The difference in the jurisdiction of this isted under an ordinance chartering the court upon writs of error to a state as disNorthwestern North Carolina Railroad tinguished from a Federal court, in quesCompany, which ordinance was adopted tions claimed to arise out of the contract by the constitutional convention of North clause of the Constitution, is set forth in Carolina, March 9, 1868, the Constitution the opinion of the court in Central Land being itself ratified April 25, 1868. It' Company v. Laidley, 159 U. S. 103 [40: 91], |
