SAYWARD V. DENNY, 158 U. S. 180 (1895)

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U.S. Supreme Court

Sayward v. Denny, 158 U.S. 180 (1895)

Sayward v. Denny

No. 951

Submitted April 22, 1895

Decided May 8, 1895

158 U.S. 180


When the validity of no treaty or statute of, or authority exercised under, the United States, nor of a statute of, or authority exercised under, any state is drawn in question by a state court, it is essential to the maintenance of jurisdiction here that it should appear that some title, right, privilege, or immunity under the Constitution or laws of the United States was specially set up or claimed there, and that the decision of the highest

Page 158 U. S. 181

court of the state in which such decision could be had was against the title, right, privilege, or immunity so set up or claimed, and in that regard, certain propositions must be regarded as settled:

1. That the certificate of the presiding judge of the state court as to the existence of grounds upon which the interposition of this court might be successfully invoked, while always regarded with respect, cannot confer jurisdiction to reexamine the judgment below.

2. That the title, right, privilege, or immunity must be specially set up or claimed at the proper time and in the proper way.

3. That such claim cannot be recognized as properly made when made for the first time in a petition for rehearing after judgment.

4. That the petition for the writ of error forms no part of the record upon which action is taken here.

5. Nor do the arguments of counsel, though the opinions of the state courts are now made such by rule.

6. The right on which the party relies must have been called to the attention of the court in some proper way, and the decision of the court must have been against the right claimed.

7. Or at all events it must appear from the record by clear and necessary intendment that the federal question was directly involved so that the state court could not have given judgment without deciding it -- that is, a definite issue as to the possession of the right must be distinctly deducible from the record before the state court can be held to have disposed of such federal question by its decision.

Tested by these principles, it is quite apparent that this writ of error must be dismissed.

Motion to dismiss. This was an action at law brought by Arthur A. Denny and F. X. Prefontaine, as executors of the last will and testament of James Crawford, deceased, against William P. Sayward, in the Superior Court of Kitsap County, State of Washington, to recover moneys paid by James Crawford on a contract which he had executed as surety for William P. Sayward as principal. The complaint alleged that the contract referred to was executed by Sayward as principal, by and through his authorized agent, George A. Meigs, and by George A. Meigs, James Crawford, and William Harrington as sureties, and set it forth in haec verba, it being an agreement for the purchase of logs of Dingwall and Haller, to be used in certain lumber mills belonging to Sayward. It was further averred that Crawford and Harrington had no interest in the contract, and executed it only as sureties for the accommodation of Sayward; that afterwards Haller commenced an action thereon for the purchase price of the logs against Crawford, Harrington, Meigs, and Sayward; that

Page 158 U. S. 182

Crawford and Harrington appeared in and defended the action, as did Meigs, and such proceedings were had therein that, about November 3, 1882, Haller recovered judgment against Crawford, Harrington, and Meigs in the sum of $15,248.01 with costs;

"that said Sayward was never served with process in said action, and never appeared in said action; that at all times during the pendency of said action, he was outside of the State (then Territory) of Washington, and was out of the jurisdiction of said court;"

that Crawford died leaving a last will and testament in which plaintiffs were named as executors; that the will was duly admitted to probate, and plaintiffs appointed and qualified and entered upon their duties as executors; that thereafter, Haller presented his claim to said executors as a judgment creditor, and the executors were compelled to pay, and did pay, out of Crawford's estate for the use of defendant Sayward the sum of $9,200, to apply, and it was applied, to the payment of the judgment; that Sayward had never repaid said sum of money to Crawford or his estate, or any part thereof, and it remained due with interest; that at the time the judgment was obtained, and the time the cause of action accrued against Sayward, he was out of and absent from the State of Washington, and at no time since the cause of action accrued, until within a year prior to the commencement of the action, had Sayward returned or come into the State of Washington. To this complaint defendant demurred on the ground that it did not "state facts sufficient to constitute a cause of action." The demurrer was overruled, and defendant excepted, and thereupon answered, denying the allegations of the complaint except that he was the owner of the mills for the manufacture of lumber mentioned therein; averred that he was never served with process in the original action nor appeared therein; and pleaded as affirmative defenses the statute of limitations and that the executors were discharged from their trust and were not competent to bring the action. The cause was tried by a jury and, upon the verdict, the executors obtained a judgment against Sayward for the sum of $17,680.25, whereupon he appealed to the Supreme Court of the State of

Page 158 U. S. 183

Washington, alleging errors, and the judgment was by that court affirmed. The case is reported, in advance of the official series, 39 Pac. 119. A writ of error from this court was allowed by the Chief Justice of Washington, and a motion to dismiss was submitted.

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