by the tenant from the purchaser at the tax sale of the outstanding irredeemable tax certificate, more than two months and a half elapsed before the purchase of the certificate by Cohen, and no complaint was made to the landlord that she had neglected to demand payment of the tax, and that in consequence the default and loss was occasioned, but a negotiation was opened to purchase the outstanding title for the account of the tenant alone. When this line of conduct is considered in connection with the fact, already stated, the conclusion is inevitable that the suggestion that the conduct of the landlord had induced the failure to pay, first made after the death of Mrs. Kennedy, is without foundation.

And the facts which we have just stated also render it impossible to conclude that the nonpayment of the tax was due to a mere temporary oversight, and not to gross negligence. How can an inference of temporary oversight be possible when the long period of the failure by the tenant to pay any tax whatever is borne in mind, and when we also consider the delay of more than two months and a half which took place after knowledge was conveyed, by the letter of Wiltsie, of the outstanding ir

redeemable tax certificate?

use made of the certificate. Concerning these matters the court below said:

"We find no evidence whatever in the record of any fraud or wrongdoing perpetrated by anyone concerned. We only find the evidence of a situation created by a keen commercial rivalry and shrewd management, wholly untainted by wrong. doing, but still a situation from which injury is threatened to the complainant's rights of property, and against which she is entitled to be relieved. For that there was an arrangement between the defendants whereby the tax certificate was to be used to oust the complainant from the property, we think is too plain to be reasonably questioned. There was, undoubtedly, a concurrence of effort for that purpose; perhaps no formal combination or preconcerted action. But it matters not what we call it. The undoubted fact is there was co-operation between the defendants to use the tax certificate to the detriment of the complainant's rights; and there being such cooperation, the defense of multifariousness cannot prevail. The one purpose of the bill is to relieve the complainant from the effect of this tax certificate and of the tax title based upon it."

For the reason that we agree with the The fact that the tenant was a mer-finding that there is no evidence whatever chant, and of necessity kept mercantile of any fraud or wrongdoing by anyone conbooks, is significant. The mind cannot concerned, we are constrained to disagree with ceive of adequate entries being made of the the conclusion that the complainant was entaxes which were belatedly paid, which titled to relief. We say this, because we are would not have at once suggested those of opinion that the relief awarded could which were unpaid. The inference fairly only have been justified upon the finding deducible from the letter to Wiltsie-"Un- that there was fraud and wrongdoing. We fortunately we have paid you quite a conso conclude, because if it be accepted that siderable amount of money in the past for there was an agreement and combination as tax sales"-adds cogency to the irresistible to the certificate, entirely free from every inferences as to negligence. element of fraud or wrongdoing, we fail to perceive how an agreement of that character afforded ground for granting the relief which was given. But, disregarding mere forms of expression, and assuming that the general finding that there was no fraud or wrongdoing was intended to be limited to intentional as distinguished from constructive fraud or wrongdoing, let us briefly review the facts concerning the

And even if the foregoing considerations which establish the absence of accident or mistake and demonstrate the presence of gross negligence are put out of mind, and accident or mistake be assumed, for the sake of the argument, nevertheless, under the circumstances of the case, a court of equity could not give relief. This follows since the relief sought could not be afford ed without subjecting the lessor to the peril of contesting the validity of the outstand-all sustained by the record. Although we ing prima facie irredeemable tax title.

We come to the question which we hitherto put aside for final consideration; viz., the alleged fraud. It, in any event, only involves a consideration of what took place with regard to the purchase of the tax certificate by Cohen as the agent of the Kanns, and the circumstances surrounding and connected with that purchase, and the

acquisition and use made of the certificate, in order to fix whether such a finding is at

think it immaterial, as there was no evidence whatever tending to show that the lessor or her attorney procured the purchase of the certificate by Cohen, that subject may be put out of view. The irredeemable tax certificate was in the hands of and belonged to Wiltsie. He notified the tenant that he held it more than two months and a half before the purchase by Cohen, and

she offered to condone the forfeiture, provided the tenant commenced proceedings to have the outstanding tax title declared invalid, and also secured the landlord from loss in the event that such tax title should be sustained, which offer was declined, on grounds substantially asserting that the risk resulting from the default of the tenant should be borne by the owner, and not by the tenant.

Reversed.

The CHIEF JUSTICE and Mr. Justice Harlan dissent.

proffered his willingness to assign it to the tenant. As shown by the undisputed facts which we have stated, with indifference both to her own interest and the interest of the landlord, the tenant neither acted for herself by accepting the offer, nor gave any notification whatever to the landlord on the subject. Cohen, as the agent of the Kanns, learned of the existence of the irredeemable tax sale and of the person who held the certificate. He purchased it by the au- The decree of the court below is reversed thority of and for the benefit of his princi-and the cause remanded with instructions pals, the Kanns. By the express terms of to dismiss the bill for want of equity. the statute under which the certificate was issued it was assignable. Granting that the purchase was made in order to aid the Kanns in obtaining a lease of the property, in the absence of any legal duty owing by them to the tenant, we fail to perceive how the motive of Cohen or his principals could operate to make the otherwise lawful action constructively wrongful. The tenant, by whose negligent default the sale of the property had been occasioned, certainly had no exclusive pre-emptive right to the purchase of the certificate, which would operate to render its purchase by anyone else in his own interest void. After the purchase of the certificate by Cohen, what was the position of the landlord? On the one hand confronted by the assertion of the tenant that the outstanding tax title was void, that she had a right to be relieved from the forfeiture caused by the nonpayment of the tax, and was entitled to continue in possession under the lease, and, on the other, with an offer on the part of the holder of the tax title to quitclaim the same, and Argued December 14, 17, 1906. Decided thus avoid testing its validity, if only a lease was made which would be advanta

(204 U. S. 89) JACOB NEWMAN and Salmon O. Levinson, Surviving Partners of the Firm of Newman, Northrop, & Levinson, Plffs. in Err

HARRY B. GATES.

Error to state court-decision of Federaf question by highest state court.

There has been no decision of the

Federal question in the highest court of the state in which a decision in the suit could be had, which is essential to sustain a writ of error from the Supreme Court of the United States, where the highest state court dismissed an appeal in the suit because of a defect in the parties to such appeal.*

N

[No. 137.]

January 7, 1907.

geous. When it is again borne in mind that ERROR to the Supreme Court of the State of Indiana to review a judgthis situation was brought about by the ment dismissing, for a defect in parties, an neglect of the tenant to perform his cove- appeal from a judgment of the Marion nant to pay the taxes, and by his pro- County Superior Court in favor of defendcrastination in respect to acquiring the tax ant in an action on a foreign judgment, such certificate which had been previously offered action having been removed into the Suto him, we can conceive of no principle of preme Court for decision after the Appelequity preventing the landlord from taking late Court of that state had reversed the a course not forbidden by law, which was judgment below and ordered the cause renot only most conducive to her own inter-manded for a new trial. Dismissed for est, but which besides obviated the danger want of jurisdiction. of submitting her title to a contest concerning the validity of a tax sale. But, if an equitable principle could be conceived of which prevented the landlord from so acting under the circumstances stated, that principle would be inapplicable to the case before us, when one of the undisputed facts to which we have already called attention is considered. That fact is this: Before the landlord irrevocably determined to avail of the forfeiture and thus avoid the risk to herself concerning the outstanding tax title,

See same case below, 165 Ind. 171, 72 N. E. 638.

Statement by Mr. Justice White:

Jacob Newman, George Northrop, Jr., and S. O. Levinson commenced this action in the superior court of Marion county, Indiana, against the defendant in error, Harry B. Gates. Recovery of the sum of $1,400, was sought upon a judgment obtained by New man and his coplaintiffs against Gates in the circuit court of Cook county, Illinois.

Ed. Note.-For cases in point, see vol. 13, Cent Dig. Courts, 1048.

The defendant filed an answer in two para- | trial whether in fact such matters had been graphs, but, as the defenses therein asserted theretofore litigated and determined. On were ultimately abandoned, they need not the new trial the court held that certain be detailed. A counterclaim was also filed, of the issues made by the counterclaim and in which it was alleged that the plaintiffs reply had been litigated in the Illinois were, and for more than two years had action and that the Illinois judgment was been, attorneys at law engaged in the prac- res judicata as to such issues, but submitted tice of their profession at Chicago, Illinois, to the jury the question of the alleged under the firm name of Newman & North- neglect of plaintiffs in failing in the inrop; that the Illinois judgment sued upon solvency proceedings to procure an order was founded upon a claim for legal services charging the trust estate with the fees in rendered to the defendant; that the services question and the compensation earned by had been rendered in advising the defend- defendant as trustee. And the court left it ant, as trustee, in and about the manage- to the jury to determine, upon a preponderment of the property and assets of a corpo-ance of evidence, whether or not it was the ration known as the American Motor Company while in course of administration in insolvency proceedings, and that the defendant had sustained damage to the extent of $2,000 by reason of a breach of duty alleged to have been committed by the plaintiffs in the course of their employment in failing to obtain an order of the court in the insolvency proceedings relieving the defendant from personal liability for attorney's fees, and providing for payment of his compensation, etc. It was also charged that the plaintiffs had been guilty of a breach or neglect of duty in connection with a sale of the trust property in the insolvency proceedings, whereby defendant had sustained damages in the sum of $2,500. A reply was filed to the counterclaim, in two paragraphs, one embracing a general denial and the other setting up the Illinois judgment as res judicata as to all the ters embraced in the counterclaim.

law of Illinois that the failure of plaintiffs to procure such an order-if they did so fail-was a matter which was adjudicated in the Illinois action, whether evidence was introduced on such point or not, and the jury was instructed that, if such was the law of Illinois, recovery could not be had upon the counterclaim.

The second trial resulted in a verdict of $181.74 for the defendant Gates, that being the sum found to be due him in excess of the amount of the judgment sued upon. After the entry of judgment and before the taking of an appeal, George W. Northrop, Jr., one of the original plaintiffs, died. An appeal, however, was taken to the appellate court of Indiana by Jacob Newman and S. O. Levinson, describing themselves as surviving partners of the firm of Newman, Northrop, & Levinson. The personal repremat-sentative of the deceased partner was not

made a party to the appeal. The appellate In due course the case came on for trial court of Indiana overruled an objection to and the plaintiffs recovered a judgment for the sufficiency of the appeal and on the the amount of their claim. The case was merits reversed the judgment and ordered taken to the appellate court of Indiana. the cause remanded for a new trial. On the That court reversed the judgment and re- petition of the defendant Gates the supreme manded the case for a new trial (18 Ind. court of Indiana removed the cause into App. 392, 46 N. E. 654), and far want of that court for decision and subsequently authority a petition for a writ of certiorari dismissed the appeal, holding that, on acwas denied by the supreme court of Indiana | count of the omission to make the personal (150 Ind. 59, 49 N. E. 826). In the opinion representative of George W. Northrop, Jr., a of the appellate court, as also in a dissent- coappellant, the appeal could not be deing opinion, the character of the counter-termined upon the merits. 165 Ind. 171, 72 claim and the question whether, as respects N. E. 638. A petition for a rehearing havthe matters therein set forth, the Illinois ing been denied, the cause was brought judgment was res judicata, were considered here. at great length. Following an*inspection of the record of the Illinois action the court held that the counterclaim stated matters which constituted something more than a mere defense to the claim asserted in the Illinois action, that it could not be said that, under the plea of the general issue, interposed by the defendant in that action, the matters averred in the counterclaim were necessarily adjudicated, and that it was a question to be determined upon the

Messrs. Charles Martindale and S. 8. Gregory for plaintiffs in error.

Messrs. Edward E. Gates, Albert Baker, Edward Daniels, and Lewis C. Walker for defendant in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

A motion has been filed to dismiss the

*93

trial court, in refusing to admit evidence in support of the counterclaim, because the Illinois judgment constituted res judicata, was error. It had further decided that the counterclaim was "based upon a breach of contract," and constituted an independent,

writ of error or to affirm, and we proceed at | on the first appeal that the action of the once to its consideration. Several grounds are urged in argument in support of the motion, but we do not find it necessary to do more than consider an objection based upon the absence of a Federal question. The errors assigned are as follows: "The supreme court of Indiana erred in affirmative cause of action in favor of the holding and deciding:

"1. That the counterclaim set up by appellee Gates, the defendant in the trial court, based upon a breach of the same contract of hiring, which was the basis of the action of the appellants against the appellee Gates in the circuit court of Cook county, Illinois, was not adjudicated by the judgment in the circuit court of Cook county, Illinois, and by so deciding denied to the judgment of the circuit court of Cook county, Illinois, the force and effect which it has between the parties in the state of Illinois, wherein it was rendered, and denies full faith and credit to said judgment, contrary to and in violation of article 4, § 1, of the Constitution of the United States.

defendant, and that whether the questions therein involved were in fact adjudicated in the Illinois action was a question for the jury. As a result of this ruling evidence was introduced at the subsequent trial to establish what were the questions litigated and determined in the Illinois action and the extent to which, by the laws of Illinois, the judgment in that case possessed conclusive force.

Now, in the opinion delivered by the supreme court of Indiana, on dismissing the appeal, the court did not discuss or in any wise refer to the scope and conclusive effect of the Illinois judgment. Undoubtedly, the court, in view of the law of the case as declared on the first appeal, treated the | counterclaim as containing allegations of actionable breaches of duty which might have formed the subject of an independent action, and it is likewise evident that the court was of opinion that the plaintiffs were bound to perfect their appeal from the judg ment upon the counterclaim, upon the hy pothesis that the counterclaim set forth a valid cause of action against three individuals, viz., the plaintiffs in the main action. But substantially the court only considered and disposed of a preliminary question as to its authority to pass upon the controverted questions contained in the record before it. It found that there were in the counterclaim averments which it had been held early in the litigation required to be submitted to a jury, that the record exhibited a recovery upon the counterclaim against three persons, and that one of such persons had died after the rendition of judgment against him and his associates. Construing the statutes of Indiana, the

"2. That the appellee's counterclaim being valid, and not merged and adjudicated by the judgment of the circuit court of Cook county, Illinois, it was of a nature which survived against the personal representatives of a member of the partnership of Newman, Northrop, & Levinson, and that the personal representatives of the deceased partner were necessary parties to the appeal, and, not having been made parties, that neither the appellate court of the state of Indiana, nor the supreme court of the state of Indiana, has jurisdiction to determine the appeal, and the same must be dismissed, and judgment of dismissal was so rendered. Which final judgment of the supreme court necessarily involved the adjudication of the claim of the appellants to the protection of article 4, § 1, of the Constitution of the United States, "that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings, of every other state,' which adjudication was adverse to appellants' claim | court held that the cause of action asserted under said provision of the Constitution of the United States."

in the counterclaim survived the death of the party deceased, against whom a reThese assignments plainly import that covery had been had, that such cause of the supreme court of Indiana, on dismissing action could have been revived against the the appeal, considered and decided a ques- personal representative of the deceased, and tion which had been submitted to the jury that the personal representative was & on the trial; viz., whether the matters al- necessary party appellant, and, not having leged in the counterclaim as the basis for been made a coappellant and served with a recovery over against the plaintiffs had notice of the appeal, the court was without or had not been concluded by the Illinois jurisdiction to pass upon the errors assigned judgment sued upon by the plaintiffs. We upon the appeal. To give effect to the asdo not so construe the opinion and decision signments of error we should be obliged to of the court. make the impossible ruling that, despite the The appellate court of Indiana had held overruling of a demurrer to the counter

January 7, 1907.

Decided

N ERROR to the Supreme Court of the State of Colorado to review a judgment in favor of the relator in a proceeding in the nature of quo warranto to test the title to a state office, entered by that court after

claim by the trial court, and the decision in Argued December 13, 14, 1906. respect to that pleading made by the appellate court on the first appeal, a mere inspection of the counterclaim so plainly demonstrates that the pleading is destitute of merit that it should be held to have been the duty of the state court of last resort to have treated the pleading as a sham and to have disposed of the appeal upon the hy-reversing the judgment of the District Court pothesis that the counterclaim was nonexistent.

The removal of the cause from the appellate court into the supreme court of Indiana

vacated the decision of the former tribunal, and after transfer the case stood in the highest court of Indiana as though it had been appealed to that court directly from the trial court. Oster v. Broe, 161 Ind. 114, 64 N. E. 918. Had the appeal been properly taken it would have been the duty of the supreme court of Indiana to pass upon the questions presented by the record before it, including, it may be, a Federal question, based upon the due faith and credit clause of the Constitution, which, on various occasions, was pressed upon the attention of the trial court. In legal effect, however, the case stands as though no appeal had been prosecuted from the judgment rendered by the trial court. As the jurisdiction of this court to review the judgments or decree of state courts when a Federal question is pre

of the City and County of Denver in that State, which sustained a demurrer to the complaint and entered judgment for the defendant. Dismissed for want of juris

diction.

See same case below (Colo.) 86 Pac. 250.

Statement by Mr. Justice White: This was a proceeding, in the nature of quo warranto, brought in a district (state) court of Colorado, to test, as between conflicting claimants (Charles W. Badgley and

Charles S. Elder), the title to the office of Denver. The relator (Badgley) relied upon county treasurer of the city and county of a general election held pursuant to the general statutes of Colorado on November claimed to be the legal incumbent of the 8, 1904, while the defendant (Elder) office by virtue of his election to the office of treasurer of the city and county of Denver in May, 1904, under authority of the charter of said city and county of Denver. The question presented for decision sented is limited to the review of a final whether the election held in May, 1904, 8 judgment or decree, actually or constructively deciding such question, when rendered by duties required of county officers in the city under the charter, of officers to perform the “ the highest court of a state in which a de- and county of Denver, was lawful, or cision in the suit could be had, and as, for whether such officers should have been voted the want of a proper appeal, no final judg- for under the general statutes of the state ment or decree in such court has been ren- at the election held in November, 1904. A dered, it results that the statutory pre-determination of this question made necesrequisite for the exercise in this case of the reviewing power of this court is wanting. Writ of error dismissed.

(204 U. 8. 85)

CHARLES S. ELDER, Plff. in Err.,

V.

was

sary a consideration of certain provisions of article 20 of the state Constitution, providing for the creation, from the old county of Arapahoe and the old city of Denver and other municipalities, of a new entity to be known as the city and county of Denver, and conferring authority to provide in the charter for the appointment or election of officers of such city and county. In particular, a construction was required of a clause providing that "every charter shall

PEOPLE OF THE STATE OF COLORADO on the Information of GEORGE STID GER, the District Attorney of the Second Judicial District of the State of Colorado, on the Relation of CHARLES W. BADG-designate the officers who shall respectively

LEY.

Error to state court-Federal question.

A contest over a state office, dependent for its solution exclusively upon the application of the Constitution of the state or upon a mere construction of a provision of a state law, involves no possible Federal question which will sustain a writ of error from the Supreme Court of the United States to a state court.*

[No. 132.]

•Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 1049-1053.

perform the acts and duties required of county officers to be done by the Constitution or the general laws, as far as applicable." The district court sustained a demurrer to the complaint and entered judg. ment for the defendant. This judgment was reversed by the supreme court of the state, upon the authority of People ex rel. Miller v. Johnson (86 Pac. 233) and judgment was entered in that court in favor of the relator (86 Pac. 250), deciding in effect that the