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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. Fi. be 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

, a 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,

be th 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

Putting one side the oral testimony of the prerequisite to an adverse judgment. It was trial judge, there is nothing in the other referred to by all the courts in their opinmatters specified to disturb the conclusion ions, was affirmatively decided by the genwhich follows from an examination of the eral term, its decision sustained by the court record, that the validity of the releases was of appeals, and reaffirmed by that court, by actually determined. Of course, the omis- a refusal to amend its remittitur. sion of special findings means nothing, for Under these circumstances the pleas of the judgment implies a finding of all neces- res judicata were properly sustained, and sary facts. The memorandum of decision the decree of the Circuit Court, dismissing naturally states the grounds for arriving at the bill and cross bill, is affirmed. a conclusion concerning

concerning the respective claims of the colleges named in the 9th The CHIEF JUSTICE did not hear the arguclause and the beneficiaries of the deed of ment, and took no part in the decision of gift, for that was the controversy between this case. those parties, and indeed, the primary controversy presented by the pleadings. The declaration in the opinion, that the conclu

(195 U. S. 252) sion reached upon the matters discussed JOHN T. NEW, Piff. in Err., rendered it unnecessary to consider the questions of law propounded by the counsel for TERRITORY OF OKLAHOMA. these plaintiffs, must be read in the light of the prior statement therein that the Appeal- from Oklahoma supreme courtwidow and next of kin were demanding that not maintainable in capital cases-stare the releases executed by them be set aside decisis. and they be given the residuary estate, and the further fact that whether the releases 1. Lack of statutory authority precludes a rewere fraudulently obtained and void was a view in the Federal Supreme Court of judg. question of fact rather than of law. Evi- ments of the supreme court of the territory of

Oklahoma in capital cases. dently the opinion proceeded and the conclusion was reached on the assumption that 2. The Federal Supreme Court will not con

sider itself bound on the question of its there was no sufficient testimony to invali

jurisdiction by a prior case in which jurisdate the releases.

diction was entertained without any suggesFurther, the entire record of the case was tion as to the want of it. taken on appeal to the general term. That court had before it for consideration all the

[No. 226.] evidence which was presented to the trial court; and, as we have seen, declared in its Argued October 14, 17, 1904. Decided Na opinion that there was no evidence justify

vember 28, 1904. ing the contention that the releases were

N While this was not

Territory of a special finding, it discloses the conclusion of ment which affirmed a conviction of murder the court from the evidence. We cannot in the District Court of Washita County, in hold that it was not authorized to pass upon that Territory. Dismissed for want of juthis question, for its conclusion was sus-'risdiction.

V.

procured isby fraud standa undue influence

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

and comprehensive, and embraced a crimes

act, with due provision for procedure. Mr. Chief Justice Fuller delivered the

Section 9 of the organic act reads as fol

lows: opinion of the court: John T. New was tried on an indictment

“Sec. 9. That the judicial power of said for murder in the district court of Wichita territory shall be vested in a supreme court, county, Oklahoma territory, found guilty,

district courts, probate courts, and justices and his punishment fixed by the jury at imprisonment for life.

and the said supreme and disThe crimes act of Oklahoma provided that trict courts, respectively, shall possess chanevery person convicted of murder should cery as well as common-law jurisdiction and "suffer death or imprisonment at hard labor authority for redress of all wrongs commitin the territorial penitentiary for life, at ted against the Constitution or laws of the the discretion of the jury.” Okla. Stat.

United States or of the territory, affecting property.

Writs of 1893, chap. 25, § 13, p. 456; Okla. Stat. persons 1890, chap. 25, art. 17, § 13.

error, bills of exception, and appeals shall Judgment was entered on the verdict, and be allowed in all cases from the final de

cisions of said district courts to the supreme New was sentenced accordingly. He carried the case to the supreme court of the terri- court, under such regulations as may be pretory, and the judgment was affirmed. This scribed by law, but in no case removed to writ of error was then allowed, and the the supreme court shall trial by jury be al

Writs of error and objection is made that this court has no ju- lowed in said court. risdiction to review the judgments of the appeals from the final decisions of said susupreme court of Oklahoma in criminal preme court shall be allowed and may be cases, for want of statutory provision to taken to the Supreme Court of the United that effect.

States in the same manner and under the By the “Act to Provide a Temporary Gov- same regulations as from the circuit courts ernment for the Territory of Oklahoma,” of the United States, where the value of the approved May 2, 1890 (26 Stat. at L. 81, property or the amount in controversy, to chap. 182), "the legislative power and au

be ascertained by oath or affirmation of thority of said territory” was vested in the either party or other competent witness,

shall exceed $5,000.” governor and legislative assembly, and the

So far as review by this court is conpower extended “to all rightful subjects of legislation not inconsistent with the Consti- cerned, this is the usual provision, and is

limited to civil cases. We are then brought tution and laws of the United States."

Section 28 provided: “That the Constitu- to inquire whether any other statute may

Section 28 provided: “That the Constitu- be invoked to sustain our jurisdiction. tion and all the laws of the United States not locally inapplicable shall, except so far 3, 1891 (26 Stat. at L. 827, chap. 517, U. S.

Section 5 of the judiciary act of March as modified by this act, have the same force Comp. Stat. 1901, p. 549), provided that apand effect as elsewhere within the United peals or writs of error might be taken from States; and all acts and parts of acts in the district and circuit courts directly to conflict with the provisions of this act are, this court in certain enumerated classes of as to their effect in said territory of Okla- cases, among which were "cases of convichoma, hereby repealed;” and by a proviso tion of a capital or otherwise infamous § 1850 of the Revised Statutes, requiring crime." By amendment the words “or otherthe submission of territorial laws to Con-wise infamous” were stricken out, and it gress, was made inapplicable to Oklahoma. was declared that cases of convictions for an

By $ 11 certain enumerated “chapters and infamous crime not capital might be carried provisions of the Compiled Laws of the state to the circuit courts of appeals. 29 Stat. at of Nebraska, in force November 1, 1889, in L. 492, chap. 68, U. S. Comp. Stat. 1901, so far as they are locally applicable, and p. 556. not in conflict with the laws of the United

By $ 6, the judgments of the circuit courts States or with this act, are hereby extended of appeals are made final in cases arising to and put in force in the territory of Okla- under the criminal laws. homa until after the adjournment of the And 15 provides: “That the circuit court first session of the legislative assembly of of appeal in cases in which the judgments said territory, namely: . and of 'of the circuit courts of appeal are made final

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(195 U. S. 257) by this act shall have the same appellate | NATIONAL EXCHANGE BANK OF TIRjurisdiction, by writ of error or appeal, to

FIN, OHIO, Piff. in Err., review the judgments, orders, and decrees of the supreme courts of the several territories

SOLON L. WILEY. as by this act they may have to review the judgments, orders, and decrees of the dis- Constitutional lavofull faith and credit trict court and circuit courts; and for that collateral attack on foreign judgmentpurpose the several territories shall, by

due process of law. orders of the supreme court, to be made from time to time, be assigned to particular 1. A judgment taken under a warrant of ato circuits."

torney annexed to a promissory note, anBut the case before us is a capital case,

thorizing confession of judgment "in favor of

the holder," is not protected by the Federal and not included in the criminal cases to

Constitution and laws, when sued on in anwhich the jurisdiction of the circuit courts other state, from collateral attack upon the · of appeals extends. It is suggested that, as ground that the party in whose behalf it was it follows that if this court has no jurisdic- rendered was not in fact the holder, because

not the real owner of the note. tion, convictions for crimes not capital are

2. Due process of law is wanting in proceedreviewable on a second appeal, while convic

ings by which judgment is taken in a state tions for a capital crime are not, this in

court under a warrant of attorney annexed to volves an absurdity, hardship or injustice a promissory note, authorizing confession of presumably not intended. We held, how- judgment "in favor of the holder," if the

party in whose favor the judgment was renever, in Folsom v. United States, 160 U. S.

dered has ceased, before the commencement 121, 40 L. ed. 363, 16 Sup. Ct. Rep. 222,

of the suit, to own the note, or to be entithat the intention was plain, and that the tled to receive the proceeds to its own use, statute must be taken as it read.

since such judgment is, in legal effect, a perThere remains the act of February 6,

sonal judgment without service of process 1889 (25 Stat. at L. 655, chap. 113, U. S.

upon the defendants, and without their ap

pearance in person or by an authorized atComp. Stat. 1901, p. 569), by the 6th sec

torney. tion of which it was provided that "in all cases of conviction of crime, the punishment

[No. 53.] 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 respond

vember 28, 1904. ent shall, upon the application of the respondent, he re-examined, reversed, or at INERROR to the Supreme Court of the

af

State of Nebraska States upon a writ of error.” As to this, which affirmed a judgment of the District however, it was ruled in Cross v. United Court of Douglas County, of that State, in States, 145 U. S. 571, 36 L. ed. 821, 12 Sup. favor of defendant in an action on a for. Ct. Rep. 842, that, in view of the terms of eign judgment. Affirmed. the whole section, the allowance of a writ of See same case below (Neb.) 92 N. W. error to any appellate tribunal was not con- 582. templated, but merely to review the judg.

The facts are stated in the opinion. ment of the trial court.

Messrs. J. J. Boucher, Constantine J. It is thus seen that there is no statute Smyth, and Thomas D. Crane for plaintiff giving appellate jurisdiction to this court in error.

Mr. James H. McIntosh for defendant over the judgments of the supreme court of

in error. Oklahoma in capital cases.

Reference is made to Queenan v. Oklahoma, 190 U. S. 548, 47 L. ed. 1175, 23 Sup. ion of the court:

Mr. Justice Harlan delivered the opinCt. Rep. 762, in which we entertained jurisdiction in the absence of any suggestion as dered in one of the courts of Ohio, and the

This is an action upon a judgment rento the want of it. United States v. Simms, 1 question to be considered is whether the Cranch, 252, 2 L. ed. 98, is an instance of final judgment under review gave to the similar inadvertence, and when cited in proceedings in the Ohio court such faith and United States v. More, 3 Cranch, 159, 172, credit as are required by the Constitution 2 L. ed. 397, 401, Chief Justice Marshall dis- and laws of the United States. posed of it in these words: “No question The Constitution, art. 4, § 1, provides was made, in that case, as to the jurisdic- that "full faith and credit shall be given in tion. It passed sub silentio, and the court each state to the public acts, records, and does not consider itself as bound by that judicial proceedings of every other state, case.”

And the Congress may, by general laws, preWrit of error dismissed.

scribe the manner in which such acts, rec

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ords, and proceedings shall be proved, and fendants therein for $11,419.68, being the the effect thereof." The statute enacted in amount of the obligation with interest at 8 execution of that power (Rev. Stat. § 905, per cent from May 9th, 1887; the judgment U. S. Comp. Stat. 1901, p. 677), provides reciting that the attorney who acted under for the authentication of the records and ju- the warrant of attorney, naming him in dicial proceedings of the several states and person, by virtue of that warrant, entered territories and any country subject to the the appearance of the defendants, waived the jurisdiction of the United States, and de- issuing and service of process, confessed clares that “the said records and judicial judgment, and released and waived all ex. proceedings, so authenticated, shall have ceptions, errors, and right of appeal. such faith and credit given to them in every The present action was by the National court within the United States as they have Exchange Bank against Wiley on the judg. by law or usage in the courts of the state ment rendered in the Ohio suit. The defendfrom which they are taken.”

ant disputed the plaintiff's right to recover The Wiley Construction Company, a Mas- upon several grounds, one of which was sachusetts corporation, and Wiley, the de- that, prior to the institution of the Ohio fendant in error, executed and delivered to suit, and more than twelve years before the the National Exchange Bank, the plaintiff commencement of the present action, the note in error, a written instrument,-being a had been fully discharged, so far as he was note with warrant of attorney annexed,- concerned, pursuant to an agreement bedated Tiffin, Ohio, April 26th, 1884, in which, tween him and the holder. But on this writ for value received, they jointly and sever- of error we are concerned only with the part ally promised to pay to that bank, or order, of the defense which distinctly raises a Fedon the 1st day of October, 1884, at its of- eral question. fice in that city, $10,000, with 8 per cent in- The defendant alleged that the warrant terest after maturity. The instrument au- of attorney annexed to the note of April thorized N. L. Brewer, or any attorney at 26th, 1884, did not authorize a confession of law in the United States, or elsewhere, to judgment against the obligors except in appear before any court of record, after such favor of the “holder;" that so far from the obligation became due, waive the issuing National Exchange Bank being such holder and service of process, and confess judg- when it brought the Ohio suit, the Tiffin Nament against the obligors or either of them tional Bank, as early as March 2, 1885, pur"in favor of the holder” for the amount then chased, received, and became the holder of appearing to be due, together with the cost the obligation, and thereafter remained and of suit; and thereupon to release all errors still was the holder; that, therefore, the atand writs of error, and, in behalf of the torney professing to act in behalf of the deobligors or either of them, waive all right to fendants in the Ohio suit had no authority, appeal and stay of execution.

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, render judgment against him in favor of which was alleged to be $5,772.70, with in the plaintiff bank; and that its authority or terest from May 9th, 1887, at 8 per cent. jurisdiction could not be upheld consistently Upon it was credited a payment of $6,311. with the 14th Amendment of the Constitu75, as of May 9th, 1887.

tion of the United States. It may be here stated that there was no The plaintiff insisted that it was the holdindorsement on the note showing that it hader of the note when put in suit; further, ever been assigned or transferred by the that the court in Ohio had full power and original payee.

jurisdiction to render the judgment in quesWith the petition in that suit were filed tion, and that neither personal service of copies of the paper constituting the note process, on nor notice to the obligors was and warrant of attorney. With it was also necessary in order to give that court jurisfiled an answer, in which an attorney, as- diction of the parties and subject-matter. suming, by virtue of the above warrant, and Both at the trial and in the supreme court not otherwise, to be the attorney of the con- of Nebraska the bank contended that full struction company and of Wiley, confessed faith and credit, as required by the Constijudgment against them for the full amount tution and laws of the United States, would claimed by the bank.

not be given to the proceedings in the Ohio On the very day of the bringing of that suit if the judgment in its favor was held suit judgment was entered against the de- ' not to be conclusive in respect of the authority of the Ohio court to render such | indorsee; and that the warrant of attorney judgment.

under which judgment was confessed pur. It is unnecessary to set out all the in- ports to authorize such confession 'in favor structions. It is sufficient to say that the of any holder of this obligation, after the jury were, in substance, instructed that the same becomes due. But, it was held, in warrant of attorney authorized a confession broad and general terms, in the case of Ocof judgment in favor of the holder of the born v. Hauley, 19 Ohio, 130, that a warnote; that it was to be presumed upon the rant of attorney to confess judgment, atshowing made by the record of the Ohio tached to a note, and forming a part of the court that it had jurisdiction to render the same instrument, is not negotiable, and judgment sued on; and that such presump- when the note is transferred becomes invaltion continued throughout this case unless id and inoperative. It is true, the report of the defendant, by a preponderance of evi- that case does not inform us whether the dence, proved that the plaintiff bank was warrant of attorney in that case purported not, in fact, the holder of the note when put to authorize the confession of a judgment in suit in Ohio. The jury were also in- in favor of the payee of the note alone, or structed that if the plaintiff was found not whether its terms extended, as in this case, to be such holder, the verdict should be for to any holder of the note after due. But, the defendant.

however this may have been in that case, we The jury's verdict was for the defendant, suppose that, if this judgment rested upon and the judgment thereon was affirmed. the confession under the warrant of attorUpon the issue as to the ownership of the ney alone, it would be very questionable note at the time it was sued on in Ohio whether the court of common pleas had any there was, as the supreme court of Ne- rightful jurisdiction of the defendants in braska held, proof both ways.

the judgment.” Did the Ohio court have jurisdiction to In Cushman v. Welsh, 19 Ohio St. 536, render the judgment in question? It is a 539, the warrant of attorney authorized a settled doctrine, Chief Justice Marshall said, confession of judgment "in favor of the legal in Rose v. Himely, 4 Cranch, 269, 2 L. ed. holder.” The note there in question was 617, that the effect of every judgment must payable to order, and had not been regulardepend upon the power of the court to ren- | ly indorsed to the party who in fact purder that judgment. In determining whether chased and owned it, and in whose name the Ohio court had authority to render the suit was brought. The question in the case judgment against the obligors in the note, was whether the confession under the warwe must look first into the decisions of the rant of attorney authorized judgment in highest court of that state.

favor of the purchaser. The court said: In Osborn v. Hawley (1850) 19 Ohio, 130, “Though he might, as the owner of the note the plaintiff declared as indorsee of a prom- in equity, have brought an action thereon, issory note, to which was attached a power under the provisions of the Code, in his own of attorney to confess judgment. The re- name, against the makers of the note, it port of that case is very meager, but in the does not follow that he could obtain judgcourse of the opinion the court said: “The ment by confession of their warrant of power of attorney is not negotiable, and attorney attached to the note. That dewhen the legal title to the note is trans- pends on the extent of the power conferred ferred the power of attorney becomes inval- by the warrant. The attorney can do nothid, and no power whatever can be exercised ing more than execute the power conferred under it, for the benefit of the indorsee; and by his warrant; moreover, 'all authorities he holds the note as if no such power had of this sort must be strictly pursued.' Cowie ever been attached to it."

v. Allaway, 8 T. R. 257. 'Indeed, formal inIn Marsden v. Soper (1860) 11 Ohio St. struments of this sort are ordinarily sub503, the plaintiff declared on a note to which jected to a strict interpretation, and the auwas attached a warrant of attorney author- thority is never extended beyond that which izing a confession of judgment "in favor of is given in terms, or which is necessary and any holder.” A suit was brought on the proper for carrying the authority so given note in one of the courts of Ohio by the in- into full effect.' Story, Agency, 68. Now, dorsee thereof, and judgment was confessed the power conferred by the terms of the inunder a warrant of attorney annexed to the strument in this case was, to confess judgnote. The question was whether the court ment only 'in favor of the legal holder of had jurisdiction of the persons of the de- the note. The plaintiff below was not the fendants so as to authorize a judgment af- 'legal' holder of the note, for the note had fecting their rights. The supreme court of not been indorsed to him. He could become Ohio said: “It will be noticed that the the legal holder' of the note only by inplaintiff in this judgment is not the payee of dorsement thereon,' as authorized by the the note on which judgment is taken, but an 'statute. Swan & C. Stat. 862; Avery v.

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