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Argued April 19, 1899. Decided May 1, | to the intestate were absolutely void at the

IN

1899.

N ERROR to the Surrogate's Court of the County of Kings, State of New York, to review a decree of that court adjudging that Maude E. Kimball was not the widow of Edward C. Kimball, nor entitled as such to let ters of administration of his estate, and dismissing her petition praying that such let ters of administration be issued to her, etc. There was also a motion to dismiss. Writ of error dismissed.

time of his death, and were not rendered valid by the subsequent amendment of the decree of divorce; and by a decree dated March 8, 1897, adjudged that the petitioner was not the widow of Edward C. Kimball, nor entitled as such to letters of administration of his estate; and further adjudged that her petition be dismissed. On April 5, 1897, the petitioner appealed from that decree to the appellate division of the supreme court of the state of New York, which on June 22, 1897, affirmed the decree. Re Kimball, 18

See same case below, 18 App. Div. 320, App. Div. 320. From the decree of affirmand 155 N. Y. 62.

The facts are stated in the opinion. Messrs. George Bell, Waldegrave Harlock, and Henry W. Scott for plaintiff in

error.

Mr. Lemuel H. Arnold for defendants in

error.

*Mr. Justice Gray delivered the opinion of the court:

This action was begun December 18, 1896, by a petition of Maude E. Kimball, claiming to be the widow of Edward C. Kimball (who resided in Brooklyn, and died there, without issue, on November 9, 1896) to the surrogate's court of the county of Kings in the state of New York, praying that letters of administration granted by that court on November 10, 1896, to his mother and his brother-in-law, upon a petition representing that he died intestate and unmarried. be revoked, and that this petitioner be appointed administratrix.

The administrators previously appointed, being cited to show cause why the prayer of her petition should not be granted, filed an answer, denying that she was the widow of the deceased.

At the hearing in the surrogate's court, it was proved and admitted that Edward C. Kimball and the petitioner went through the ceremony of marriage at Brooklyn on June 29, 1895; that she had been married on May 12, 1885, to James L. Semon in the city of New York; that on September 25, 1890, she commenced a suit against Semon in a court of the state of North Dakota for a divorce on the ground of his desertion; that the summons in that suit was not served upon him in North Dakota, but was served upon him in the state of New York on October 15, 1890; that on January 26, 1891, that court rendered a decree of divorce against him as upon his default; that she was living in North Dakota from June 5, 1890, to February 5, 1891; that when she brought her suit for divorce, and ever since, Semon was a resident of the state of New York; and that on Decem

ber 16, 1896, that court, upon his application and after notice to her, amended the decree of divorce by striking out the statement of his default, and by stating, in lieu thereof, that he had appeared and answered in the suit. Copies of the record of the proceedings for divorce were produced; and the principal matter contested in the surrogate's court was the validity of the divorce. 160] The surrogate's court held that the decree of divorce and the marriage of the petitioner

ance, the petitioner on August 19, 1897, appealed to the court of appeals of the state of New York; and that court, on February 4, 1898, affirmed the decree, and ordered the case to be remitted to the surrogate's court. 155 N. Y. 62.

The petitioner sued out this writ of error, and assigned for error that the courts of New York had not given due faith and credit to the decree of the court of North Dakota.

The writ of error was entered in this court on February 21, 1898. On March 22, 1898, the defendants in error moved to dismiss the writ of error, because of the following facts, proved by them, and admitted by the plaintiff in error, namely: On March 25, 1897, on a petition of the mother and sister of Edward C. Kimball, representing that his last will and testament, dated July 7, 1890, devising and bequeathing to them all his property, real and personal, and appointing them executrices thereof, had just been found, the surrogate's court, upon due proof of its execution and attestation, entered a decree admitting the will to probate, ordering letters testamentary to be issued to the executrices, and revoking the letters of administration which had been granted to the mother and the brother-in-law on November 10, 1896. The entry of the decree of March 25, 1897, was notified by the counsel of the present defendants in error to the counsel of the plaintiff in error on the day on which it took place.

The motion to dismiss was opposed by the plaintiff in error, upon the grounds that the judgment below involved a Federal *question[161] within the jurisdiction of this court; that a dismissal of the writ of error would leave the plaintiff in error bound by the adjudication below that she was not the widow of the de ceased; that the admission of the will to Probate had no bearing on the question before this court; and that the defendants in error had been guilty of laches in not sooner making a motion to dismiss.

The consideration of the motion to dismiss

the writ of error was postponed until the hearing upon the merits, and now presents itself at the threshold.

The rule which must govern the disposition of this motion has been often stated and acted on by this court.

In a comparatively recent case, pending a writ of error to reverse a judgment for a railroad corporation in an action against it by a state to recover sums of money for taxes, it was shown that the defendant had

made a tender of those sums to the state,
and a deposit of them in a bank to its credit,
which by statute had the same effect as act-
ual payment and receipt of the money. Stip-mother and the brother-in-law of the de-
ulations had been made in other similar cases
that they should abide the judgment of this
court in this case; and the Attorney General
of the state contended that a determination
of the question whether the tax was valid
was of the utmost importance to the people
of the state. But this court dismissed the
writ of error, saying: "The duty of this
court, as of every judicial tribunal, is lim-York Code of Civil Procedure, §§ 2476, 2626,
ited to determining rights of persons or of
property, which are actually controverted in
the particular case before it. When, in de-
termining such rights, it becomes necessary
to give an opinion upon a question of law,
that opinion may have weight as a precedent
for future decisions. But the court is not
empowered to decide moot questions or ab-[29: 589]; Washington Market Co. v. Dis-
straet propositions, or to declare, for the
government of future cases, principles or
rules of law which cannot affect the result as
to the thing in issue in the case before it. No
stipulation of parties or counsel, whether in
the case before the court or in any other case,
can enlarge the power or affect the duty of
the court in this regard." California v. San
Pablo & Tulare Railroad Co. 149 U. S. 308,
314 [37: 747, 749].
[162] *Again, in a still more recent case, this
court, upon a review of the previous deci-
sions, said: "The duty of this court, as of
every other judicial tribunal, is to decide
actual controversies by a judgment which
can be carried into effect, and not to give
opinions upon moot questions or abstract
propositions, or to declare principles or rules
of law which cannot affect the matter in is-
sue in the case before it. It necessarily fol-
lows that when, pending an appeal from the
judgment of a lower court, and without any
fault of the defendant, an event occurs which
renders it impossible for this court, if it
should decide the case in favor of the plain-
tiff, to grant him any effectual relief what-
ever, the court will not proceed to a formal
judgment, but will dismiss the appeal."
Mills v. Green, 159 U. S. 651, 653 [40: 293,
294].

only relief which could be granted upon that
petition, were the revocation of the letters of
administration previously issued to the

ceased, and the grant of new letters of ad-
ministration to the petitioner. The decree ad-
mitting the will to probate, in terms, re-
voked the former letters of administration,
and, by its legal effect, superseded the ne-
cessity and the possibility of granting any
letters of administration as of an intestate es-
tate to the petitioner or to anyone else. New[163]
2684. The whole subject-matter of the writ
of error is thus withdrawn, and the writ of
error must be dismissed for want of any-
thing upon which it can operate. Chicago
D. & Vincennes Railroad Co. v. Fosdick, 106
U. S. 47, 84 [27: 47, 65]; San Mateo County
v. Southern Pacific Railroad Co. 116 U. S. 138
trict of Columbia, 137 U. S. 62 [34: 572].

From the necessity of the case, this court is compelled, as all other courts are, to allow facts which affect its right and its duty to proceed in the exercise of its appellate jurisdiction, but which do not appear upon the record before it, to be proved by extrinsic evidence. Dakota County v. Glidden, 113 U. S. 222, 225, 226 [28: 981, 982]; Mills v. Green, above cited.

The reasons are quite as strong, to say the least, for applying the rule to a writ of error to a state court, on which the jurisdiction of this court is limited to Federal questions only, as to a writ of error to a circuit court of the United States, on which the jurisdiction of this court extends to the whole case. The rule was applied to a writ of error to the court of errors and appeals of the state of New Jersey in Little v. Bowers, 134 U. S. 547 [33: 1016].

In the present case, the subject-matter of the petition to the surrogate's court, and the

The question whether the petitioner was or was not the widow of the deceased, whatever importance it may have in the determination of other controversies in which she may be interested, is a moot question in this case in the present condition of things; for, however that question should be decided, the petitioner cannot obtain letters of administration, and the letters of administration granted to other persons have been revoked.

The objection of laches is of no weight. No consent of parties can authorize this court to exercise jurisdiction over a case in which it is powerless to grant relief. Little v. Bowers, 134 U. S. 558, 559 [33: 1021]; California v. San Pablo & Tulare Railroad Co. above cited. The probate of the will was granted, and was known to both parties to this suit, ten days before the petitioner appealed from the decree of the surrogate's court. Yet neither party appears to have requested the surrogate to modify the form of his decree against the petitioner. Had the probate of the will been brought to the notice of either of the appellate courts of the state of New York. that court might probably have dismissed the case, for the reason that its decision could not be made effectual by a judgment. People [ex rel. Kingsland], v. Clark, 70 N. Y. 518, 520. The neglect of both parties to bring that fact to the notice of those courts affords no reason for this court's assuming to decide a question, the decision of which cannot affect the relief to be ultimately granted in this case. Writ of error dismissed.

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1898.

NELSON V. MOLONEY.

Submitted April 17, 1899. Decided May | 027.13) dollars, and the judgment roll *duly[168]
filed in the office of the clerk.of Albany coun-
ty on said date.

1, 1899.

ERROR to the Supreme Court of the

I State of New York to review a judgment of that court for the foreclosure of a mortgage in an action brought by Dennis Moloney against Samuel Nelson and others, after its affirmance by the Appellate Division and the Court of Appeals of the State. On motion to dismiss or affirm. Dismissed.

See same case below, 158 N. Y. 351.

Statement by Mr. Chief Justice Fuller: This was a suit brought by Dennis Moloney against Samuel Nelson, Albert J. Adams, and others, in the supreme court of New York, city and county of New York, to foreclose a mortgage on real estate given Moloney by Nelson to secure a bond for ten thousand dollars in indemnification of Mo[165]loney against loss by reason of becoming bail for one O'Brien. The judge before whom the case was tried found the facts as follows:

"I do find that in the month of October,

1891, one Thomas O'Brien was under arrest

and confined in Albany county jail, charged
with the crime of grand larceny in the first
degree, and that on the 16th day of October,
1891, he was discharged from custody on giv.
ing a certain bail bond or recognizance in the
sum of ten thousand dollars executed by him-
self, the defendant, Samuel Nelson, and the
plaintiff, Dennis Moloney, conditioned that
the said Thomas O'Brien should appear and
answer the said charge in whatever court
it may be prosecuted.

him

"That thereafter executions upon said last

mentioned judgment were duly issued to the
sheriff of Albany county and the plaintiff's
property was sold under said execution, and
the entire amount of said judgment paid
wholly by the plaintiff.

"That no part of the sum of ten thousand
dollars secured by said bond and mortgage
has been paid to the plaintiff, and defendants
agreed and consented on the trial of this ac-
tion that interest upon said sum of ten thou-
sand dollars should be computed from the 5th
day of June, 1893."

And thereupon judgment of foreclosure
and sale for the amount due and for pay-
ment of any deficiency was entered.

Before this suit was commenced Moloney
had brought a similar suit against Nelson
and recovered judgment, which was reversed
by the general term of the supreme court on
the ground that it had been prematurely
brought, because Moloney had not then paid
anything on account of the judgment entered
on the forfeiture of the criminal recognizance.
Moloney v. Nelson, 70 Hun, 202. From that
judgment Moloney prosecuted an appeal to
the court of appeals, entering into the usual
stipulation that if the judgment appealed
from was affirmed, judgment absolute might
be rendered against him. The judgment was
affirmed and judgment absolute entered.
Moloney v. Nelson, 144 N. Y. 182. After
meantime Nelson had transferred the prop-
that this action was commenced, but in the
erty mortgaged to defendant Adams,
From the judgment of the trial court in
this suit Nelson alone appealed to the appel-
late division of the supreme court in the first
department, by which it was affirmed. Nel-

son then carried the cause to the court of

appeals, and the judgment of affirmance was
affirmed. Moloney v. Nelson, 158 N. Y. 351.
The record having been remitted to the su-
preme court, this writ of error was allowed,
and motions to dismiss or affirm submitted.

"That the defendant, Samuel Nelson, in order to induce the plaintiff to enter into said to indemnify recognizance, agreed against liability thereunder, and the plaintiff relying upon said agreement and not otherwise entered into and executed the same as aforesaid and the said defendant, Samuel Nelson, immediately thereafter and' in fulfilment of said agreement, did execute and deliver to the plaintiff, Dennis Moloney, the bond and mortgage set up in the complaint in this action, which said mortgage was Mr. Abram J. Rose for defendant in erthereafter and on the 17th day of October, 1891, duly recorded in the office of the reg ror in favor of motion to dismiss or affirm. Messrs. William H. Newman and Alister of the city and county of New York. "That thereafter and on the 2d day of No-bert J. Adams, Jr., for plaintiff in error in vember, 1891, the said Thomas O'Brien was opposition to motion. called upon in the county court of Albany county to appear and answer the indictment above referred to, but did not appear and the bail bond or recognizance executed by said O'Brien, the plaintiff, Dennis Moloney, and the defendant, Samuel Nelson, was, on said 2d day of November, 1891, declared forfeited. "That thereafter and before the commencement of this action, an action was brought by the people of the state of New York against the plaintiff, Dennis Moloney, and the defendant, Samuel Nelson, to recover upon said forfeited bail bond or recognizance, and on the 8th day of December, 1891, judgment in said action was duly entered in favor of the people of the state of New York against the defendant, Samuel Nelson, and the plaintiff, Dennis Moloney, for the sum of ten thousand and twenty-seven 13-100 ($10,

*Mr. Chief Justice Fuller delivered the[167] opinion of the court:

It is stated in the opinion of the court of appeals, by Chief Judge Parker, that the defenses interposed by Nelson "upon the trial, and relied upon here, are: (1) The stipulation given by the plaintiff on the appeal to this court in a prior action brought to foreclose the mortgage is a bar to the recovery in this action. (2) The bond and mortgage having been given to indemnify bail in a criminal case, they are void because contrary to public policy."

The court of appeals ruled that the contention that the stipulation given on appeal to that court operated to prevent a recovery was "without support in authority or reason;" and as to the second ground relied up

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2.

3.

The claim of plaintiffs, that their property is about to be taken from them by the authorities of a city without due process of law, and in violation of the Federal Constitution, because the statute of the state under which the proceedings were taken violates the Constitution of the state, does not involve the construction of, nor make the suit one arising under, the Federal Constitution.

In order to confer jurisdiction upon the United States circuit court on the ground that the sult arises under the Constitution or laws of the United States, there must be a real and substantial dispute as to the effect or construction of such Constitution or laws, upon the determination of which the recoverv depends.

on to defeat the action, that it was not a part | 1. of the public policy of the state of New York to insist upon personal liability of sureties and forbid bail to become indemnified. These conclusions involved no Federal question, nor can we find on this record that any title, right, privilege, or immunity under the Constitution or the laws of the United States was specially set up or claimed in the state courts, and that the decision of the highest court of the state in which a decision could be had was against any title, right, privilege, or immunity so set up or claimed. But it is said that Nelson filed his petition and bond for the removal of the cause from the supreme court of the state of New York to the United States circuit court for the southern district of New York on the ground that, at the time of the commencement of the action, he was a citizen of New Jersey and Moloney was a citizen of the state of New York, and that the action taken thereon raised a Federal question. It appeared that Moloney, Submitted April 5, 1899. Decided May 1, and Adams, the holder of the record title to the property mortgaged, were both citizens of the state of New York, and it is not claimed that the state court denied the peti[168]tion, but, on the contrary, conceded that the record was transmitted to the circuit court, and that that court, on motion, remanded the cause to the state court because there was no separable controversy wholly between citizens of different states. This being so, the proceedings in relation to the removal of the cause afforded no ground for the issue of the writ of error.

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Where the allegation that the sult arises under the Federal Constitution is palpably unfounded, it does not constitute even color for the jurisdiction of the United States circuit court. [No. 238.]

1899.

APPEAL from a decree of the Circuit

Court of the United States for the Southern District of Iowa certifying the question of jurisdiction of that court in a suit in equity brought by Walter M. McCain et al. against the city of Des Moines et al. to obtain an injunction restraining the city and its officers and agents from exercising over the territory of the town of Greenwood Park any function of government for the purpose of taxation, and for other relief. Decree dismissing the suit affirmed. See same case below, 84 Fed. Rep. 726.

In Missouri Pacific Railway Co. v. Fitzgerald, 160 U. S. 556, 582 [40: 536, 543], we held that, "if the circuit court remands a cause and the state court thereupon proceeds Statement by Mr. Justice Peckham: to final judgment, the action of the circuit *The bill in this case is filed against the[169] court is not reviewable on writ of error to city of Des Moines, its board of public works, such judgment. A state court cannot be held the Des Moines Brick Manufacturing Comto have decided against a Federal right, when pany, and the incorporated town of Greenit is the circuit court, and not the state court, wood Park, to obtain an injunction restrainwhich has denied its possession. As ing, among other things, the city of Des under the statute a remanding order of the Moines and its officers and agents from exercircuit court is not reviewable by this court cising over the territory of the incorporated on appeal or writ of error from or to that town of Greenwood Park any function of mu court, so it would seem to follow that it can- nicipal government for the purpose of taxanot be reviewed on writ of error to a state tion or for works of internal improvements court, the prohibition being that 'no appeal or otherwise, and for other relief. or writ of error from the decision of a circuit court remanding such cause shall be allowed.' And it is entirely clear that a writ of error cannot be maintained under section 709 in respect of such an order where the state court has rendered no decision against a Federal right but simply accepted the conclusion of the circuit court." Writ of error dismissed.

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The bill makes the following allegations: The complainants own in severalty lands within the incorporated town of Greenwood Park, and the lands so owned by each of the complainants are worth more than $2,000; adjoining the town is the city of Des Moines, a municipal corporation created under the laws of the state of Iowa. In 1890 the legislature passed an act purporting to extend the limits of the city of Des Moines so as to include therein the town above named. The Constitution of the state prohibits the passing of special acts for the incorporation of cities; the act of 1890 was a special act incorporating a city and therefore prohibited by the Constitution, and as a consequence entirely void. The incorporated town has never been dissolved, and is entitled to exercise all the functions of government and taxation, but it has ceased to exercise them over the territory; that notwithstanding the act of

1898.

MCCAIN V. DES MOINES.

1890 is wholly void and of no effect, the defendant, the city of Des Moines, pretended and undertook to exercise the functions of government and the power of taxation over the territory of Greenwood Park; that the only warrant for the city to act in the premises is the void act of the legislature of 1890, and the city is assuming to levy assessments and to exercise the power of taxation and to perform all the other functions of municipal government under that act; that the suit herein is one of a civil nature arising under the laws and Constitution of the Unit170]ed States; and the sum in controversy *exceeds $2,000. It appears on the face of the bill that all the parties are citizens of the state of Iowa.

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stitution or laws of the United States, and
therefore the circuit court had no jurisdic-
tion in the case.

The circuit court sustained the demurrer
on the ground of want of jurisdiction, and
pursuant to section 5 of the act of 1891, or-
ganizing the circuit courts of appeals (26
Stat. at L. 826), it has certified the ques-
tion of jurisdiction alone for decision by this
court.

The opinion of the district judge, in dis missing the bill, is reported in 84 Fed. Rep. 726.

Messrs. William E. Mason and William
G. Clark for appellants.

Messrs. N. T. Guernsey, H. T. Granger,
and Arthur C. Graves for appellees.

*Mr. Justice Peckham, after stating the[171] facts, delivered the opinion of the court:

The jurisdiction of the circuit court de-
pends upon the act approved August 13, 1888
(25 Stat. at L. 433, chap. 866), a part of
which reads as follows: "That the circuit
courts of the United States shall have orig-
inal cognizance, concurrent with the courts
of the several states, of all suits of a civil na-
at common law or in equity,
arising under the Constitution or laws of the
United States.

The bill further alleges that the city made a contract with the defendant, the Des Moines Brick Manufacturing Company, to pave a public highway in the town, the expense of which was to be assessed upon the property abutting thereon, including the lands of the complainants, and the work was all done under color of the act mentioned, and that it was all illegal for want of authority; that at the time of the passage of the act and the taking of jurisdiction by the city, the town was exclusively an agriculture tural community, and there was no advantage in or necessity for the annexation of the town to the city of Des Moines, and none of the land in the town had been plotted into lots by laying out streets or alleys therein, and the highways within it were under the control and jurisdiction of the officers of Polk county, and that to subject the lands of complainants or the other lands within the town to the taxes and assessments threatened by the city of Des Moines is to take their property under color of authority from the void act of 1890, and contrary to the amendment of the Constitution of the United States, section 1, article 14.

Further allegations were made, not material to be stated.

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As it appears upon the face of the bill that all the parties are citizens of Iowa, the circuit court had no jurisdiction on the ground of diverse citizenship.

Is the suit one arising under the Constitution or laws of the United States? As was said in the court below, the material question is whether the exercise of jurisdiction by the city of Des Moines over the terriTo answer that question it tory purporting to be annexed by the act of 1890 is lawful. is necessary only to refer to the Constitution[172 and law of the state of Iowa.

The supreme court of the state decided in the State of Iowa [ex rel. West], v. City of In addition to asking for an injunction Des Moines, 96 Iowa, 521 [31 L. R. A. 186], to restrain the city of Des Moines from ex- that the act of 1890 was void because it vioercising jurisdiction over the town of Green-lated the constitutional provision in regard wood Park, the complainants ask that the to special legislation. That was an action of town "be enjoined to exercise for its own quo warranto brought to test the right of future benefits under the statutes of Iowa all the defendant city to exercise corporate aufunctions of municipal government and tax- thority over the added territory under the ation and works of internal improvement in act of 1890. From the report of the facts in the same manner and to the same extent as that case it appears that the city was by that the said functions have been exercised by act extended two and a half miles in each said defendant prior to March 3, 1890." The direction from its then present boundary, bill further prayed that the city and the and it was provided by the same act that the board of public works should be enjoined corporate character of any annexed territory from making any levy upon the property of within the extended boundaries should cease the complainants to pay the expense of pav- and determine upon the passage of the act. ing the highway, and that the city be re- Other sections of the act provided for the strained from issuing to the Des Moines payment of the indebtedness of the city so Brick Manufacturing Company any assess- enlarged and of the indebtedness of the cities ment certificates on account of paving, and within the annexed territory, and for the exemption from taxation for any city purfor other relief. The defendant, the Des Moines Brick Man-pose of lands included within the extended [171]ufacturing *Company, demurred to the bill limits which had not been laid off into lots of on the ground, among others, that it ap- ten acres or less, or which should not subse peared on the face of complainants' bill that quently be divided into parcels of ten or less by the extension of streets all the parties to the suit were citizens of acres the state of Iowa, and that this suit does not and alleys or otherwise, and also of lands involve any question arising under the Con- occupied and used in good faith for agricul

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