THE VICTORY, 73 U. S. 382 (1867)

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U.S. Supreme Court

The Victory, 73 U.S. 6 Wall. 382 382 (1867)

The Victory

73 U.S. (6 Wall.) 382


Before this Court can entertain jurisdiction to review a judgment of the state court, it must appear that one of the questions mentioned in the twenty-fifth section of the Judiciary Act was raised in the state court and actually decided by it; that is to say, the question must have received the consideration or attention of the court. It is not sufficient that this Court can see that it ought to have been raised, and that it might have been decided.

The twenty-fifth section of the Judiciary Act provides that a final judgment in the highest court of a state where is drawn in question the validity of a statute of any state, on the ground of its being repugnant to the Constitution of the United States, and the decision is in favor of such validity, may be reexamined in this Court.

With this law in force, and under a statute of the State of Missouri which authorized apparently a proceeding in rem against vessels for supplies furnished to them, Boylan filed a petition in one of the state courts of Missouri against the steamboat Victory (which was made defendant to the suit), for supplies furnished in her home port at the request of her owner, and for which he claimed a lien on the vessel to the amount of $4,214. The items of the account were set forth in a bill of particulars accompanying the petition, and the plaintiffs prayed for a warrant of seizure, on judgment, and for sale of the boat to satisfy their claim.

The owner of the vessel appeared and filed an answer in which he admitted $500 of the claim to be due, and to be a lien on the boat, but denied that any other items or amounts

Page 73 U. S. 383

were due or owing by the boat, or that they were a lien thereon. Testimony was also taken which showed that the contest was about the amount due and the date at which some of it ceased to be a lien. But there was apparently nothing in the answer, or in the testimony, or in the instructions asked or given to the jury, from which an inference could be drawn, that it was denied that supplies of the character set forth were a lien on the vessel to which they were furnished, or that the statute which gave the lien was asserted to be void, or that the jurisdiction of the court to enforce it was controverted.

The state court ordered the vessel to be sold, and this judgment having been affirmed in the supreme court of the state, the case was brought here as within the twenty-fifth section of the Judiciary Act above quoted, and with a view of reversing that judgment, the ground of the expected reversal being, of course, that the case was one of admiralty cognizance, and was therefore exclusively within the jurisdiction of the district courts of the United States, and because the statute of Missouri which authorized the proceeding in the state court was for that reason unconstitutional.

Page 73 U. S. 384

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