Opinion of the Court.

the defendant or his representative," in order to prevent the running of the statute, could not, at the suit of one claiming under the original defendant, be collaterally impeached because the only person cited was the assignee in bankruptcy of that defendant. Held, that the decision was not subject to review by this court on writ of error.

THE case is stated in the opinion.

Mr. S. H. Hubbard and Mr. Solicitor General for plaintiff

in error.

Mr. Charles J. Boatner, for defendants in error, submitted on his brief.

MR. JUSTICE GRAY delivered the opinion of the court.

This was a petition, filed May 8, 1884, in the fifth District Court of the parish of Ouachita in the State of Louisiana, to restrain the execution against land in that parish of a judg ment rendered June 28, 1882, in favor of the defendants, by which that land (to which the petitioner claimed title under a conveyance from Mrs. Eliza W. Warfield, dated June 30, 1875) was subjected to a judicial mortgage arising out of a judgment for money, recovered by the defendants March 20, 1874, in a personal action against Mrs. Warfield. The petitioner alleged that the original judgment against Mrs. Warfield had been prescribed by virtue of article 3547 of the Civil Code of Louisiana, (which is copied in the margin,1) and that a judgment

1 "All judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgments: Provided, however, that any party interested in any judgment may have the same revived, at any time before it is prescribed, by hav ing a citation issued according to law to the defendant or his representative from the court which rendered the judgment, unless defendant or his representative show good cause why the judgment should not be revived; and if such defendant be absent and not represented, the court may appoint a curator ad hoc to represent him in the proceedings, upon which curator ad hoc the citation shall be served. Any judgment revived as above provided shall continue in full force for ten years from the date of the order of court reviving the same, and any judgment may be revived as often as the party or parties interested may desire."

Opinion of the Court.

since recovered by the defendants, reviving that judgment, was null and void, for want of sufficient notice. The material facts bearing on the validity of the judgment of revival were as follows:

On September 11, 1876, Mrs. Warfield was adjudged a bankrupt under the laws of the United States, and William T. Atkins was appointed her assignee in bankruptcy, and as such sold the property in her schedule, and rendered his final account on October 15, 1879, but was never discharged from his duties as assignee. Mrs. Warfield never obtained her discharge in bankruptcy, and permanently removed in 1879 from the State of Louisiana, and died in Tennessee in 1881, leaving no heirs in Louisiana.

On February 8, 1884, the parish district court, upon the application of the defendants, appointed its clerk administrator of Mrs. Warfield's estate, and he took an oath assuming the administration. On February 9, 1884, the defendants filed a petition in that court under said article of the Civil Code, praying for a revival of the original judgment against Mrs. Warfield, for the appointment of a curator ad hoc, and for a citation to such curator, to the administrator, and to Atkins, assignee. A curator ad hoc was accordingly appointed, and he and the administrator waived citation and appeared and answered. Atkins was served with a citation, and also appeared and answered, denying all the allegations of the petition. Judgment was thereupon rendered, on February 20, 1884, reviving the original judgment, and in March. 1884, was duly recorded and reinscribed.

In the case at bar, the court refused the injunction prayed for, and gave judgment for the defendants, and this judgment was affirmed by the Supreme Court of Louisiana.

The petitioner sued out this writ of error, which was allowed by Chief Justice Bermudez, who added this memorandum: "In this case the court has passed upon no question, except the method of interrupting prescription on a judgment provided by the statute of the State, a matter within the arbitrary control of the State legislature, and involving no question of due process of law. Even as to this question, we have

Opinion of the Court.

simply held that the judgment of revival could not be questioned in the present form of action. I do not consider that any Federal question properly arises and was passed upon in the case; but as one was presented which, it is claimed, might be considered to exist by the United States Supreme Court, I grant the order."

The grounds upon which the jurisdiction of this court is invoked by the petitioner are that the state court, by holding that the citation to Atkins as assignee was valid and effectual to support the judgment of revival, deprived the petitioner of his property without due process of law, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States; and construed the Bankrupt Act of the United States, and article 3547 of the Civil Code of Louisiana, so as to make them unconstitutional by thus depriving him of his property; and disregarded section 5057 of the Revised Statutes of the United States, which provides that "no suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee," and thereby denied a right and immunity claimed by the petitioner under the Bankrupt Act of the United States.

But the judgment of the Supreme Court of Louisiana, as appears by its opinion, copied in the record, and reported in 40 La. Ann. 645, as well as by the Chief Justice's memorandum, above quoted, did not pass upon the question of the capacity of the assignee to represent the bankrupt in the proceedings to obtain the judgment of revival; and merely held that this question could not be presented and decided in this collateral way, but only in a direct suit to annul that judgment, bringing in all parties to it.

The question presented to the inferior court of the State upon the petition for the judgment of revival was whether the assignee in bankruptcy was such a representative of the original judgment debtor that a citation might issue to the assignee

Syllabus.

under the statute of limitations of Louisiana, for the purpose of preventing a judgment, admitted to be valid, from being prescribed within ten years from the time of its rendition. The true construction of the statute of limitations in this respect, as well as the proper manner of reviewing the decision of that question, if erroneous, was a matter of state law and practice, in no way depending upon the Constitution of the United States or upon any act of Congress.

In order to give this court jurisdiction of a writ of error to review a judgment of a state court against a right claimed under a statute of the United States, that right must be one of the plaintiff in error, and not of a third person only. Giles v. Little, 134 U. S. 645. The immunity or privilege of the assignee in bankruptcy from being cited in these proceedings could only be set up by the assignee himself, or by a person claiming under him, and not by a person claiming under a conveyance from the bankrupt before the bankruptcy. The assignee, having appeared and answered to the petition for revival, and thereby submitted himself to the jurisdiction of the state court, would have been bound by its judgment, if against him. Winchester v. Heiskell, 119 U. S. 450; Adams v. Crittenden, 133 U. S. 296. But he set up no title in himself, no judgment was rendered against him, and he has sued out no writ of error. Section 5057 of the Revised Statutes has therefore no application to the case.

Writ of error dismissed for want of jurisdiction.

HORN SILVER MINING COMPANY v. NEW YORK

STATE.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 48. Argued and submitted December 11, 1891.- Decided February 29, 1892.

The statute of New York of May 26, 1881, (Laws of 1881, c. 361,) imposing a tax upon the corporate franchise or business of every corporation, joint-stock company or association incorporated or organized under any

VOL. CXLIII-20

Statement of the Case.

law of the State or of any other State or country, to be computed by a percentage upon its whole capital stock, and to be ascertained in the manner provided by the act, when applied to a manufacturing corporation organized under the laws of Utah, and doing the greater part of its business out of the State of New York, and paying taxes in Illinois and Utah, but doing a small part of its business in the State of New York, does not tax persons or property not within the State; nor regulate interstate commerce; nor take private property without just compensation; nor deny to the corporation the equal protection of the laws; nor impose a tax beyond the constitutional power of the State: and the remedy of the corporation against hardship and injustice, if any has been suffered, must be sought in the legislature of the State.

The cases respecting state taxation of foreign corporations reviewed.

THE Court stated the case as follows:

The defendant below, the plaintiff in error here, the Horn Silver Mining Company, is a corporation created under the laws of the Territory of Utah. The present action is brought by the People of the State of New York, upon the allegation that it was doing business within the State in 1881 and 1882, to recover certain taxes alleged to be chargeable on its “corporate franchise or business" for those years and the penalty prescribed for their non-payment in each year.

By the act of the legislature of New York, approved May 26, 1881, (1 Sess. Laws, 1881, p. 481, c. 361,) amending a previous act providing for levying taxes for the use of the State upon certain corporations, joint-stock companies and associations, it was declared that every corporation, joint-stock company, or association then or thereafter incorporated or organized under any law of the State, or of any other State or country, and doing business in the State, with certain specified exceptions not important in this case, should be subject to a tax "upon its corporate franchise or business," to be computed in a mode specified, which was by a certain percentage upon its capital stock measured by the dividend on the par value of that stock, or, where there were no dividends, or its dividends were less than a certain percentage upon the par value of the capital stock, then according to a certain percentage upon the actual value of the capital stock, during the year.