1. the case before the state court which at least 3. for motion to dismiss―ruling on merits as The action of a circuit court in remanding The question of the effect of an order remanding a cause from a circuit court of the United States to a state court, in which the contention was made that the cause was still pending in the Federal court, gives color for a motion to dismiss a writ of error from the Supreme Court of the United States to the state court. A ruling on the merits instructing the jury to return a verdict in favor of one defendant, which is adverse to plaintiff and without his assent, when made on the trial after the right to a removal of the cause to a Federal court on the ground that such defendant had been fraudulently made a party in order to prevent removal had been denied, cannot operate to make the cause then removable, and thereby enable the other defendants to prevent plaintiff from taking a verdict against them. [No. 150.] tion or the laws or treaties of the United Submitted December 4, 1899. Decided Janu States, which had in some manner been brought to the attention of the court below. The record shows nothing of the kind in this case. A claim or right which has never been made or asserted cannot be said to have been dcried by a judgment which does not refer to it. Hamilton Mfg. Co. v. Massachusetts, 6 Wall. 632, 18 L. ed. 904. A point that was never raised cannot be said to have been decided adversely to a party who never set it up or in any way alluded to it. Nor can [635]it be said that the *necessary effect in law of a judgment which is silent upon the question is the denial of a claim or right which might have been involved therein, but which in fact was never in any way set up or spok173 U. S. 198, 199, 200, 43 L. ed. 666, 667, 19 Sup. Ct. Rep. 281. en of." We are confined, then, to the only Federal questions which this record presents, and in disposing of these as we have, no opinion is intimated on the contention that the judg ment was erroneous because the assessment, in effect, included the entire capital stock of plaintiff in error as a consolidated corporation. Judgment affirmed. HENRY F. WHITCOMB and Howard Morris, as Receivers of the Wisconsin Central Company, Piffs. in Err., v. JOHN A. SMITHSON. ary 8, 1900. ERROR to the Supreme Court of the State of Minnesota to review a decision affirming a judgment entered on a verdict in a state court after the cause had been removed to a Federal court and remanded again to the state court. On motions to dismiss or affirm. Affirmed. See same case below, 71 Minn. 216, 73 N. W. 853. Statement by Mr. Chief Justice Fuller: *This was an action brought in the district[635] court of Ramsay county, Minnesota, by John A. Smithson against the Chicago, Great Western Railway Company, and H. F. Whitcomb and Howard Morris, receivers of the Wisconsin Central Company, to recover for personal injuries while he was serving the Chicago, Great Western Railway Company as a locomotive fireman, in a collision between the locomotive on which he was at work and another locomotive operated by Whitcomb and Morris, as receivers of the Wisconsin Railway Company, appointed by the United States circuit courts for the eastern district of Wisconsin and the district of Minnesota. The Chicago, Great Western Railway Company answered the complaint, and the receivers filed a petition for the removal of the cause into the circuit court of the United States for the district *of Minne-[636] sota, setting up diverse citizenship, and that they were officers of the United States ecurts; that the controversy was separable; and that the railway company was frauduWrit of error to state court-review of or- lently made a party for the sole purpose of der remanding cause after removal—color|preventing the removal of the cause. Plain (See S. C. Reporter's ed. 635-638.) NOTE. AS to removal of separable contro- As to appeal from order of circuit court reversics, see note to Merchants Cotton Press & Storage Co. v. Insurance Co. of N. A. 38 L. ed. T. S. 105. manding cause, see note to Whelan v. New York, L. E. & W. R. Co. (C. C. N. D. Ohio) 1 L. R. A. 65. tiff answered the petition and asserted that the company was made party defendant in good faith, and not for that purpose. An order of removal was entered and the cause sent to the circuit court, and thereafterwards that court, on hearing on rule to show cause, remanded it to the district court of Ramsay county. Defendants Whitcomb and Morris being in default, it was stipulated between plaintiff and themselves that in consideration that plaintiff allowed them to answer, plaintiff should have a trial of the cause at the June term, 1896, of the court, and further "in case of a final judgment in said action in favor of said plaintiff against said receivers, that the receivers will not oppose the allowance of the same before the master in chancery." Whitcomb and Morris thereupon filed their answer. Huskins v. Cincinnati, N. O. & T. P. R. Co. 37 Fed. Rep. 504, 3 L. R. A. 545; Kanouse v. Martin, 15 How. 198, 14 L. ed. 660; Evans v. Dillingham, 43 Fed. Rep. 177; Yarde v. Baltimore & O. R. Co. 57 Fed. Rep. 913; Mattoon v. Reynolds, 62 Fed. Rep. 417; Cookerly v. Great Northern R. Co. 70 Fed. Rep. 277; Yulee v. Vose, 99 U. S. 539, 25 L. ed. 355; Powers v. Chesapeake & O. R. Co. 65 Fed. Rep. 129; Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. Mr. John A. Lovely submitted the cause for defendant in error: The decision of a subordinate Federal court remanding a cause to a state court is absolute. Morey v. Lockhart, 123 U. S. 56, 31 L. ed. 68, 8 Sup. Ct. Rep. 65; Wilkinson v. Nebraska ex rel. Cleveland Soc. for Savings, 123 . S. 286, 31 L. ed. 152, 8 Sup. Ct. Rep. 120; Sherman v. Grinnell, 123 U. S. 679, 31 L. ed. 278, 8 Sup. Ct. Rep. 260; Richmond & D. R. Co. v. Thouron, 134 U. S. 45, 33 L. ed. 871, 10 Sup. Ct. Rep. 517: Gurnee v. Patrick County, 137 U. S. 143, 34 L. ed. 602, 11 Sup. Ct. Rep. 34: Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 40 L. ed. 536, 16 Sup. Ct. Rep. 389: Re Pennsylvania Co. 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141. The case came on for trial on the morning of April 20, 1897, when Whitcomb and Morris asked leave to file an amended answer, setting up that the court was without jurisdiction because the cause was pending in the circuit court. The application was denied, and said defendants excepted. The trial proceeded, and after the testimony was closed, on April 21, counsel for the Chicago, Great Western Railway Company moved that the jury be instructed to return a verdict in behalf of that defendant, which motion the court granted. Thereupon the The only cases that can be urged against receivers asked permission to file a petition the view that the situation, so far as the for removal supplemental to the petition question of jurisdiction is concerned, was not already on file, and proffer of petition and changed by the order of the court at the end bond being treated as made, the court de- of the trial directing the verdict in favor of nied the application, and exception was taken. On the morning of April 22 the court instructed the jury to return a verdict in favor of the Chicago, Great Western Railway Company, which was done, and thereupon the case went to the jury, which returned verdict on April 23 against Whitcomb and Morris as receivers, and assessed plaintiff's damages. Motion for new trial having been made and overruled, judgment was entered on the verdict, and [637]was subsequently affirmed by the supreme court of Minnesota on appeal. 71 Minn. 216, 73 N. W. 853. The pending writ of error having been issued, motions to dismiss or affirm were submitted. a Mr. Howard Morris submitted the cause for plaintiffs in error (Mr. Thomas H. Gill was with him on the brief): The record shows that a right, privilege, Missouri P. R. Co. v. Fitzgerald, 160 U. S. When the railway company defendant was the railway company, are those where, before the actual trial commenced, there was, by the voluntary action of the plaintiff in the state court, such a change of parties as to eliminate or reform the jurisdictional conditions entirely. Such is the case of Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. It will not be presumed to be the fault of the defendant in error, so far as jurisdiction is concerned, that the court, over his objection, ordered a verdict against one of the defendants in the action. Arrowsmith v. Nashville & D. R. Co. 57 Fed. Rep. 169. While the petition for removal alleged that the suit was collusively commenced against both parties, this charge was denied by answer of defendant in error, and such issue was determined in his favor by the Federal judge, whose decision is conclusive on that matter. Black's Dillon, Removal of Causes, p. 232, § 137; Louisville & N. R. Co. v. Wangelin, 132 U. S. 599, 33 L. ed. 474, 10 Sup. Ct. Rep. 203. Where proceedings in the trial of a cause eliminated certain defendants, leaving parties in the case that would have made the action originally removable, it is then too late to attempt such a removal even before the trial in the state court has commenced. Rosenthal v. Coates, 148 U. S. 142, 37 L. ed. 399, 13 Sup. Ct. Rep. 576; Jifkins v. Sweetzer, 102 U. S. 177, 26 L. ed. 129. [637] *Mr. Chief Justice Fuller delivered the opinion of the court: This was a ruling on the merits, and not a ruling on the question of jurisdiction. It The action of the circuit court in remand- was adverse to plaintiff, and without his ing the cause after its removal on the first assent, and the trial court rightly held that it application is not open to revision on this did not operate to make the cause then removwrit of error. Missouri P. R. Co. v. Fitz-able and thereby to enable the other defendgerald, 160 U. S. 566, 40 L. ed. 539, 16 Sup. ants to prevent plaintiff from taking a verCt. Rep. 389. And if the state court did not dict against theni. The right to remove was err in denying the second application the not contingent on the aspect the case may motion to affirm must be sustained, as we have assumed on the facts developed on the think the question of the effect of that re- merits of the issues tried. As we have said, manding order gave color for the motion to the contention that the railway company dismiss. was fraudulently joined as a defendant had been disposed of by the circuit court. But assuming, without deciding, that that contention could have been properly renewed under the circumstances, it is sufficient to say that the record before us does not sustain it. Judgment affirmed. The record shows that the circuit court granted the motion to remand on the authority of Thompson v. Chicago, St. P. & K. C. R. Co. 60 Fed. Rep. 773, in which case it was ruled that there was no separable controversy; and its judgment covered the question of fact as to the good faith of the joinder. The contention here is that when the trial court determined to direct a verdict in favor of the TELLURIDE POWER TRANSMISSION[639] Chicago, Great Western Railway Company, Writ of error to state court-supplemental 1. 2. 3. A supplemental transcript filed after a case was argued and decided in the supreme court of a state, with nothing to show how it came to be filed, when no certiorari has been issued to bring it up, or any motion made for leave to file it, or any order permitting it to be filed, is a mere excrescence on the record, which cannot be considered in the Supreme Court of the United States. Merely setting up a general right under a Federal statute does not present a case within the first category of cases specified in U. S. Rev. Stat. § 709, of "an authority exercised under the United States," where the validity of the statute is not in question. [638] *As stated by the supreme court of Min- The questions of priority of possession of a water right and of conformity to local customs, laws, and decisions do not constitute Federal questions under U. S. Rev. Stat. § 2339, which will give jurisdiction to a Federal court, but are merely preliminary to or the possible basis of a Federal question. [No. 70.] uary 8, 1900. IN ERROR to the Supreme Court of the State of Utah to review a judgment af- the close of the evidence a motion was made over state courts: necessity of Federal question, 305 lands against an adverse claimant. Dis- See same case below, 16 Utah, 125, 51 Pac. tion, and averred that the greater part of the bed of the cañon was unsurveyed public land; that the defendants took possession of a large portion of these lands for the purpose of constructing a reservoir, and of Statement by Mr. Justice Brown: other lands for canals, flumes, and small [639] *This was a suit brought by the Rio Grande dams, in order to carry out the purpose of Western Railway Company, a corporation of the enterprise for which they were char Utah, in the district court of the fourth ju- tered: that, in 1894, *they entered upon [641] dicial district of Utah, against the Telluride | Provo Cañon and made surveys for the purPower Transmission Company and two indi- pose of ascertaining whether water power vidual defendants, named Nunn and Hol- could be obtained for the production of elecbrook, to confirm and quiet the title of the tric current, and whether by storage in resplaintiff company to certain unsurveyed pub-ervoirs water could be obtained for agricul lic lands of the United States in the county tural and mining purposes; and that thereand state of Utah. after they took possession of a large part of the public domain lying in the said cañon, including the land in dispute, for the purpose of constructing a reservoir thereon; that, in order to complete this enterprise, they would require the whole of the cañon, and that, if the plaintiff or anyone else should construct a railroad through the cañon, this enterprise would be defeated; that in 1895 they began the construction of a flume, in order to obtain power with which to aid in the construction of a dam 85 feet high at Hanging Rock, the latter dam being intended to retain water for power and irrigation purposes; that they made surveys of the contour of the reservoir to be formed by the dam; that in the spring of 1896 they prosecuted the work upon the said surveys and flume; that prior to the plaintiff's entry into Provo Cañon they, the defendants the Telluride Company and Nunn, had entered upon the unoccupied, unsurveyed public land therein, with the purpose of constructing an expensive dam and reservoir; and that, on September 12, 1896, when this suit was commenced, and for more than two years prior thereto, they were and had been in actual possession of the land in dispute. The bill of complaint was filed September 12, 1896, and set forth that the railway company was authorized to construct and operate a railway in Provo Cañon, Utah, on either of two routes described; that in March, 1896, it commenced the survey and location of a line of railroad through the cañon, which line passed over certain tracts of unsurveyed lands of the United States, of which one Murphy was in possession, prior to the survey; that it became the owner of [640]this right of way. *under an act of Congress affirming such rights, subject only to its obligation to pay the occupant the damages to his possessory right, which he subsquently released. The plaintiff further alleged that, while lawfully in possession of the land, the defendants set up an adverse claim, and by threats and force stopped its work and denied its right to use the land for railway purposes. A judgment was demanded that the adverse claim be decreed unfounded; that the right of the plaintiff be confirmed, and the defendants be enjoined from asserting their adverse claim or interfering with the plaintiff's possession. It would appear from a supplemental transcript of the record filed in the supreme court of Utah, after its judgment upon the merits, that, prior to any further action being taken, and on or about December 5, 1896, the defendants, the Telluride Power Transmission Company, and the individual defendant Nunn, filed a petition for a removal of the case to the circuit court of the United States, on account of diversity of citizenship, except as to defendant Holbrook, who was charged with having no interest in the controversy, and with being a mere nominal party, and made such for the purpose of ousting the jurisdiction of the Federal court. Upon hearing the arguments of counsel, the petition was denied. After filing an objection to the further exercise of jurisdiction by the state court, the defendants demurred to the bill of complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. No exception was taken by the defendants who united in an answer in which it was alleged that the defendant Holbrook had no interest in the subject-matter in controversy. The case was tried by the court without a jury. Findings of fact and conclusions of law were made by the court to the effect that the plaintiff had prior possession of the land, and that the adverse claim of the defendants was unfounded. A judgment was thereupon entered in favor of the plaintiff; its title to the lands in question confirmed and quieted; the adverse claim adjudged invalid, and the defendants enjoined from setting up claims or exercising rights adverse to those of the plaintiff. From this judgment, defendants, the Telluride Company, court of Utah, which affirmed the judgment and Nunn, took an appeal to the supreme of the district court. Whereupon these defendants sued out a writ of error from this court, assigning, amongst other things, as error, the failure of the *district court to re-[642] move the case to the circuit court of the United States. Mr. Arthur Brown argued the cause, The answer further denied the materi- and, with Messrs. H. P. Henderson and al allegations of the complaint, as well as William Story, filed briefs for plaintiffs in the existence of the plaintiff as a corpora- error. 306 Vr. James H. Hayden, argued the cause, and, with Messrs. Joseph K. McCammon and K. Harkness, filed briefs for defendant in error. Contentions of counsel sufficiently appear in the opinion. It is insisted that the case falls within the first category of cases specified in Rev. Stat. § 709, "where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity." But the cases in which this clause has been applied are those wherein the validity of a statute, [642] *Mr. Justice Brown delivered the opinor of an authority exercised by a public of ion of the court: ficial of the United States, has been called 1. The question of the removal of the case in question, and not those where a general to the Federal court may be disposed of right is set up under a statute. McGuire without difficulty. The facts are that, on v. Massachusetts, 3 Wall. 387, 18 L. ed. 164; January 21, 1898, four months after the case Millingar v. Hartupee, 6 Wall. 258, 18 L. ed. was argued in the supreme court, and six 829; Daniels v. Tearney, 102 U. S. 415, 26 L. weeks after it was decided, there was filed ed. 187; Sharpe v. Doyle, 102 U. S. 686, 26 in the supreme court of Utah a supplemental L. ed. 277; Buck v. Colbath, 3 Wall. 334, 18 transcript containing the original petition L. ed. 257. The use of the word "authority" for removal to the circuit court, the bond of in the third clause in connection with the the petitioners, the order of the court deny word "commission" favors the theory that a ing the petition, and a protest of the defend-personal authority was intended, and not ants against the further exercise of juris- the assertion of an abstract right created diction by the state court. But it does not by a statute. appear how this supplemental record came to be filed. No certiorari was issued to bring it up. No motion was made for leave to file it. No order was entered permitting it to be filed, and, for aught that appears, it was procured by some unauthorized person and thrust upon the files without notice to either party, without consultation with the court, and for the purpose of creating a defense which was never called to the attention of the supreme court. The transcript, upon which the case was heard in the supreme court, was stipulated by the attorneys for the respective parties to be "a full, correet, true, and complete transcript of the proceedings in said cause on appeal, and of all the pleadings in said cause, of all orders on demurrer, of the findings of the court and conclusions therefrom, and of the judgment, and of notice of intention to move for a new trial, and of the notice of appeal, and of the bill of exceptions and statement of motion for new trial." In short, this supplemental transcript is a mere excrescence. It is scarcely necessary to say that, under such circumstances, it cannot be considered here. Goodenough Horse-Shoe Mfg. Co. v. Rhode Island Horse-Shoe Co. 154 U. S. 635, 24 L. ed. 368, 14 Sup. Ct. Rep. 1180. [643] *2. If there be any Federal question in the case, it arises from Rev. Stat. § 2339, which reads as follows: We think the case falls more properly within the third clause, as one wherein a title or right is claimed under a statute of the United States. In such case such title or right must be "specially set up and claimed" before judgment in the state court. This was not done in the case under consideration. In its complaint, the plaintiff railway company makes no allusion to this act, but relies upon an act of Congress respecting a right of way for railroads through public lands of the United States (18 Stat. at L. 482, chap. 152), and upon certain *provisions[644] of the local laws of Utah. The statute is not set up in the answer of the defendants, who relied upon their priority of possession. So, also, in the thirty-three assignments of error, filed by the defendants in the state supreme court, no reference is made to an act of Congress as the basis of their right, and no intimation is made that the district court erred in the construction or applicability of any such act. In the opinion of the supreme court it is stated that the errors alleged raised the questions, first, whether there was not a statutory forfeiture of the plaintiff's charter, in consequence of a failure to complete and put its road in operation; second, whether plaintiff had the lawful right to locate its right of way in the cañon, and had located it over the land in dispute, and was "Whenever, by priority of possession, in actual possession thereof, when defendrights to the use of water for mining, agri- ant interfered; third, whether the law recultural, manufacturing, or other purposes quired the plaintiff to file with the register have vested and accrued, and the same are of the land office a profile of its route; and, recognized and acknowledged by the local fourth, whether the defendants made such customs, laws, and the decisions of courts, appropriation, or had such possession of the the possessors and owners of such vested land in dispute as authorized them to hold rights shall be maintained and protected in it against the plaintiff. After discussing the same; and the right of way for the con- the validity of the plaintiff's charter, the struction of ditches and canals for the pur-powers granted by it, and the possession of poses herein specified is acknowledged and the plaintiff, the opinion proceeds to conconfirmed; but whenever any person, in the sider whether the defendants had any right construction of any ditch or canal, injures to the land in dispute, and in this connecor damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage." tion finds that they might have obtained a |