ment is a solemn record. Parties have a | tained by the court of appeals, which, in its right to rely upon it. It should not lightly opinion, also referred to the question. Fibe disturbed, and ought never to be over- nally, by the motion to amend its remittitur, thrown or limited by the oral testimony of the attention of the court of appeals was a judge or juror of what he had in mind specifically called to these very matters at the time of the decision. Undoubtedly, which are now urged as showing a failure when the pleadings are general, as in a case on the part of the lower courts to determine of the common counts, evidence may be the question of the validity of the releases, given of the testimony which was intro- and it refused to make any order which duced on the trial, for that may disclose would permit a further consideration. Nothwhat must have been considered and de- ing can be clearer from this record than that termined. And where the evidence is that the question of the validity of the releases testimony was offered at the prior trial was not only before the state courts, but upon several distinct issues, the decision of was considered and determined by them, any one of which would justify the verdict and the regularity of the procedure was susor judgment, then the conclusion must be tained by the highest court of the state. that the prior decision is not an adjudica- The question was, as affirmed by counsel for tion upon any particular issue or issues, these appellants, put in issue by the pleadand the plea of res judicata must fail. ings, and its determination was a necessary prerequisite to an adverse judgment. It was referred to by all the courts in their opinions, was affirmatively decided by the general term, its decision sustained by the court of appeals, and reaffirmed by that court, by a refusal to amend its remittitur.

Putting one side the oral testimony of the trial judge, there is nothing in the other matters specified to disturb the conclusion which follows from an examination of the record, that the validity of the releases was actually determined. Of course, the omission of special findings means nothing, for the judgment implies a finding of all necessary facts. The memorandum of decision naturally states the grounds for arriving at a conclusion concerning the respective claims of the colleges named in the 9th clause and the beneficiaries of the deed of gift, for that was the controversy between those parties, and indeed, the primary controversy presented by the pleadings. The declaration in the opinion, that the conclusion reached upon the matters discussed rendered it unnecessary to consider the questions of law propounded by the counsel for these plaintiffs, must be read in the light of the prior statement therein that the widow and next of kin were demanding that the releases executed by them be set aside and they be given the residuary estate, and the further fact that whether the releases were fraudulently obtained and void was a question of fact rather than of law. Evidently the opinion proceeded and the conclusion was reached on the assumption that there was no sufficient testimony to invalidate the releases.

Under these circumstances the pleas of res judicata were properly sustained, and the decree of the Circuit Court, dismissing the bill and cross bill, is affirmed.

The CHIEF JUSTICE did not hear the argument, and took no part in the decision of this case.

(195 U. S. 252)

JOHN T. NEW, Plff. in Err.,

v.

TERRITORY OF OKLAHOMA.

Appeal from Oklahoma supreme courtnot maintainable in capital cases-stare decisis.

1.

Lack of statutory authority precludes a review in the Federal Supreme Court of judgments of the supreme court of the territory of Oklahoma in capital cases.

2. The Federal Supreme Court will not con

sider itself bound on the question of its jurisdiction by a prior case in which jurisdiction was entertained without any suggestion as to the want of it.

[No. 226.]

Further, the entire record of the case was taken on appeal to the general term. That court had before it for consideration all the evidence which was presented to the trial court; and, as we have seen, declared in its Argued October 14, 17, 1904. Decided Noopinion that there was no evidence justifying the contention that the releases were

vember 28, 1904.

procured by fraud and undue influence. IN ERROR to the Supreme Court of the

While this was not stated in the form of a special finding, it discloses the conclusion of the court from the evidence. We cannot hold that it was not authorized to pass upon this question, for its conclusion was sus

Territory of Oklahoma to review a judgment which affirmed a conviction of murder in the District Court of Washita County, in that Territory. Dismissed for want of jurisdiction.

See same case below, 12 Okla. 172, 70 | part three thereof, entitled 'Criminal Pac. 198. Code.'"

The facts are stated in the opinion. This temporary provision was supplanted Messrs. Hugh T. Taggart and Culp & some months subsequently by laws passed by Giddings for plaintiff in error. the Oklahoma legislative assembly. Okla.

Mr. Percy C. Simons for defendant in Stat. 1890. These statutes were elaborate

error.

Mr. Chief Justice Fuller delivered the opinion of the court:

John T. New was tried on an indictment

for murder in the district court of Wichita county, Oklahoma territory, found guilty, and his punishment fixed by the jury at imprisonment for life.

The crimes act of Oklahoma provided that every person convicted of murder should "suffer death or imprisonment at hard labor in the territorial penitentiary for life, at the discretion of the jury." Okla. Stat. 1893, chap. 25, § 13, p. 456; Okla. Stat. 1890, chap. 25, art. 17, § 13.

Judgment was entered on the verdict, and New was sentenced accordingly. He carried the case to the supreme court of the territory, and the judgment was affirmed. This writ of error was then allowed, and the objection is made that this court has no jurisdiction to review the judgments of the supreme court of Oklahoma in criminal cases, for want of statutory provision to

that effect.

By the "Act to Provide a Temporary Government for the Territory of Oklahoma," approved May 2, 1890 (26 Stat. at L. 81, chap. 182), "the legislative power and authority of said territory" was vested in the governor and legislative assembly, and the power extended "to all rightful subjects of legislation not inconsistent with the Consti

tution and laws of the United States."

Section 28 provided: "That the Constitu

tion and all the laws of the United States

not locally inapplicable shall, except so far as modified by this act, have the same force and effect as elsewhere within the United States; and all acts and parts of acts in conflict with the provisions of this act are, as to their effect in said territory of Oklahoma, hereby repealed;" and by a proviso § 1850 of the Revised Statutes, requiring the submission of territorial laws to Congress, was made inapplicable to Oklahoma. By § 11 certain enumerated "chapters and provisions of the Compiled Laws of the state of Nebraska, in force November 1, 1889, in so far as they are locally applicable, and not in conflict with the laws of the United States or with this act, are hereby extended to and put in force in the territory of Oklahoma until after the adjournment of the first session of the legislative assembly of said territory, namely: . . . and of

and comprehensive, and embraced a crimes act, with due provision for procedure.

Section 9 of the organic act reads as follows:

"Sec. 9. That the judicial power of said. territory shall be vested in a supreme court, district courts, probate courts, and justices of the peace.

<6

.. and the said supreme and district courts, respectively, shall possess chancery as well as common-law jurisdiction and authority for redress of all wrongs committed against the Constitution or laws of the United States or of the territory, affecting persons

or property. . . . Writs of error, bills of exception, and appeals shall be allowed in all cases from the final decisions of said district courts to the supreme court, under such regulations as may be prescribed by law, but in no case removed to the supreme court shall trial by jury be al

lowed in said court. Writs of error and

appeals from the final decisions of said supreme court shall be allowed and may be taken to the Supreme Court of the United

States in the same manner and under the

same regulations as from the circuit courts of the United States, where the value of the property or the amount in controversy, to be ascertained by oath or affirmation of either party or other competent witness, shall exceed $5,000."

So far as review by this court is concerned, this is the usual provision, and is limited to civil cases. We are then brought to inquire whether any other statute may be invoked to sustain our jurisdiction.

Section 5 of the judiciary act of March 3, 1891 (26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549), provided that appeals or writs of error might be taken from the district and circuit courts directly to this court in certain enumerated classes of cases, among which were "cases of conviction of a capital or otherwise infamous crime." By amendment the words "or otherwise infamous" were stricken out, and it was declared that cases of convictions for an infamous crime not capital might be carried to the circuit courts of appeals. 29 Stat. at L. 492, chap. 68, U. S. Comp. Stat. 1901, p. 556.

By § 6, the judgments of the circuit courts of appeals are made final in cases arising under the criminal laws.

And § 15 provides: "That the circuit court of appeal in cases in which the judgments of the circuit courts of appeal are made final

(195 U. S. 257)

FIN, OHIO, Plff. in Err.,

v.

SOLON L. WILEY.

by this act shall have the same appellate | NATIONAL EXCHANGE BANK OF TIF jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the supreme courts of the several territories as by this act they may have to review the judgments, orders, and decrees of the district court and circuit courts; and for that purpose the several territories shall, by orders of the supreme court, to be made from time to time, be assigned to particular circuits."

But the case before us is a capital case, and not included in the criminal cases to which the jurisdiction of the circuit courts of appeals extends. It is suggested that, as it follows that if this court has no jurisdiction, convictions for crimes not capital are reviewable on a second appeal, while convictions for a capital crime are not, this involves an absurdity, hardship or injustice presumably not intended. We held, however, in Folsom v. United States, 160 U. S. 121, 40 L. ed. 363, 16 Sup. Ct. Rep. 222, that the intention was plain, and that the statute must be taken as it read.

Constitutional law-full faith and creditcollateral attack on foreign judgmentdue process of law.

1.

2.

A judgment taken under a warrant of attorney annexed to a promissory note, authorizing confession of judgment "in favor of the holder," is not protected by the Federal Constitution and laws, when sued on in another state, from collateral attack upon the ground that the party in whose behalf it was rendered was not in fact the holder, because not the real owner of the note.

Due process of law is wanting in proceedings by which judgment is taken in a state court under a warrant of attorney annexed to a promissory note, authorizing confession of judgment "in favor of the holder," if the party in whose favor the judgment was rendered has ceased, before the commencement of the suit, to own the note, or to be entitled to receive the proceeds to its own use, since such judgment is, in legal effect, a personal judgment without service of process upon the defendants, and without their ap pearance in person or by an authorized attorney.

There remains the act of February 6, 1889 (25 Stat. at L. 655, chap. 113, U. S. Comp. Stat. 1901, p. 569), by the 6th section of which it was provided that "in all cases of conviction of crime, the punishment of which provided by law is death, tried before any court of the United States, the final Argued November 4, 7, 1904. Decided Nojudgment of such court against the respondent shall, upon the application of the re

[No. 53.]

vember 28, 1904.

State of Nebraska to review a judgment which affirmed a judgment of the District Court of Douglas County, of that State, in favor of defendant in an action on a foreign judgment. Affirmed.

spondent, be re-examined, reversed, or af-IN ERROR to the Supreme Court of the firmed by the Supreme Court of the United States upon a writ of error." As to this, however, it was ruled in Cross v. United States, 145 U. S. 571, 36 L. ed. 821, 12 Sup. Ct. Rep. 842, that, in view of the terms of the whole section, the allowance of a writ of error to any appellate tribunal was not contemplated, but merely to review the judg ment of the trial court.

It is thus seen that there is no statute giving appellate jurisdiction to this court over the judgments of the supreme court of Oklahoma in capital cases.

Reference is made to Queenan v. Oklahoma, 190 U. S. 548, 47 L. ed. 1175, 23 Sup. Ct. Rep. 762, in which we entertained jurisdiction in the absence of any suggestion as to the want of it. United States v. Simms, 1 Cranch, 252, 2 L. ed. 98, is an instance of similar inadvertence, and when cited in United States v. More, 3 Cranch, 159, 172, 2 L. ed. 397, 401, Chief Justice Marshall disposed of it in these words: "No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case."

Writ of error dismissed.

See same case below (Neb.) 92 N. W.

582.

The facts are stated in the opinion. Messrs. J. J. Boucher, Constantine J. Smyth, and Thomas D. Crane for plaintiff

in error.

Mr. James H. McIntosh for defendant in error.

ion of the court:
Mr. Justice Harlan delivered the opin-

dered in one of the courts of Ohio, and the
This is an action upon a judgment ren-
question to be considered is whether the
final judgment under review gave to the
proceedings in the Ohio court such faith and
credit as are required by the Constitution
and laws of the United States.

The Constitution, art. 4, § 1, provides that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may, by general laws, prescribe the manner in which such acts, rec

ords, and proceedings shall be proved, and the effect thereof." The statute enacted in execution of that power (Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677), provides for the authentication of the records and judicial proceedings of the several states and territories and any country subject to the jurisdiction of the United States, and declares that "the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken."

The Wiley Construction Company, a Massachusetts corporation, and Wiley, the defendant in error, executed and delivered to the National Exchange Bank, the plaintiff in error, a written instrument,-being a note with warrant of attorney annexed, dated Tiffin, Ohio, April 26th, 1884, in which, for value received, they jointly and severally promised to pay to that bank, or order, on the 1st day of October, 1884, at its office in that city, $10,000, with 8 per cent interest after maturity. The instrument authorized N. L. Brewer, or any attorney at law in the United States, or elsewhere, to appear before any court of record, after such obligation became due, waive the issuing and service of process, and confess judgment against the obligors or either of them "in favor of the holder" for the amount then appearing to be due, together with the cost of suit; and thereupon to release all errors and writs of error, and, in behalf of the obligors or either of them, waive all right to appeal and stay of execution.

fendants therein for $11,419.68, being the amount of the obligation with interest at 8 per cent from May 9th, 1887; the judgment reciting that the attorney who acted under the warrant of attorney, naming him in person, by virtue of that warrant, entered the appearance of the defendants, waived the issuing and service of process, confessed judgment, and released and waived all exceptions, errors, and right of appeal.

The present action was by the National Exchange Bank against Wiley on the judgment rendered in the Ohio suit. The defendant disputed the plaintiff's right to recover upon several grounds, one of which was that, prior to the institution of the Ohio suit, and more than twelve years before the commencement of the present action, the note had been fully discharged, so far as he was concerned, pursuant to an agreement between him and the holder. But on this writ of error we are concerned only with the part of the defense which distinctly raises a Federal question.

The defendant alleged that the warrant of attorney annexed to the note of April 26th, 1884, did not authorize a confession of judgment against the obligors except in favor of the "holder;" that so far from the National Exchange Bank being such holder when it brought the Ohio suit, the Tiffin National Bank, as early as March 2, 1885, purchased, received, and became the holder of the obligation, and thereafter remained and still was the holder; that, therefore, the attorney professing to act in behalf of the defendants in the Ohio suit had no authority, in virtue of such warrant of attorney, to On the 31st day of July, 1899, nearly fif- represent them in that suit, or to confess teen years after the maturity of the note, judgment in favor of the National Exchange the National Exchange Bank instituted suit | Bank; that the defendant was neither served against both obligors in the court of com- with process in the Ohio suit nor had any mon pleas of Seneca county, Ohio,-a court notice thereof; that the Ohio court was enof general jurisdiction in that state, to re-tirely without authority or jurisdiction to cover the balance due on that obligation, which was alleged to be $5,772.70, with interest from May 9th, 1887, at 8 per cent. Upon it was credited a payment of $6,311.75, as of May 9th, 1887.

It may be here stated that there was no indorsement on the note showing that it had ever been assigned or transferred by the original payee.

With the petition in that suit were filed copies of the paper constituting the note and warrant of attorney. With it was also filed an answer, in which an attorney, assuming, by virtue of the above warrant, and not otherwise, to be the attorney of the construction company and of Wiley, confessed judgment against them for the full amount claimed by the bank.

On the very day of the bringing of that suit judgment was entered against the de

render judgment against him in favor of the plaintiff bank; and that its authority or jurisdiction could not be upheld consistently with the 14th Amendment of the Constitution of the United States.

The plaintiff insisted that it was the holder of the note when put in suit; further, that the court in Ohio had full power and jurisdiction to render the judgment in question, and that neither personal service of process, on nor notice to the obligors was necessary in order to give that court jurisdiction of the parties and subject-matter.

Both at the trial and in the supreme court of Nebraska the bank contended that full faith and credit, as required by the Constitution and laws of the United States, would not be given to the proceedings in the Ohio suit if the judgment in its favor was held not to be conclusive in respect of the au

thority of the Ohio court to render such | indorsee; and that the warrant of attorney judgment.

Did the Ohio court have jurisdiction to render the judgment in question? It is a settled doctrine, Chief Justice Marshall said, in Rose v. Himely, 4 Cranch, 269, 2 L. ed. 617, that the effect of every judgment must depend upon the power of the court to ren-ly indorsed to the party who in fact purder that judgment. In determining whether the Ohio court had authority to render the judgment against the obligors in the note, we must look first into the decisions of the highest court of that state.