Statement of the Case.

SAN FRANCISCO CITY AND COUNTY v. ITSELL.

ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.

No. 1506. Submitted January 8, 1890. Decided January 20, 1890.

This court has no jurisdiction to review a judgment of the highest court of a State, unless a federal question has been, either in express terms or by necessary effect, decided by that court against the plaintiff in error.

THE original action was ejectment, brought in the Superior Court of San Francisco by the city and county of San Francisco to recover a tract of land in San Francisco, of which the plaintiff alleged that it was seized in fee, and entitled to the possession, in trust for the use of the State of California and of the people of the city and county as a public plaza, park, common or square, and commonly known as Hamilton square or plaza.

1st.

It was duly pleaded in the answer, and found by the court, (a trial by jury having been waived by the parties,) as follows: In July, 1869, a compromise was agreed upon between the city and one Tompkins, who claimed this and other land, by which the officers of the city, under an ordinance of the board of supervisors, executed a conveyance of the land to Tompkins, and in consideration thereof Tompkins conveyed to the city the other land claimed by him. On February 19, 1870, the ordinance and conveyances were ratified and confirmed by act of the legislature of California. On July 23, 1869, Tompkins conveyed this land to one Palmer.

2d. On September 11, 1869, Palmer brought an action against the city, in a court of the State having jurisdiction of the subject matter and of the parties, alleging that he had the title in fee and the right of possession of this land, and that the city claimed an adverse interest, but had no title, interest or estate therein; the city appeared and denied his allegations, and the issue was decided in his favor, and it was adjudged that he was the lawful owner in fee simple absolute of the land, and that the city had no estate, right, title or interest

VOL. CXXXIII-5

Opinion of the Court.

therein, and be forever restrained and debarred from asserting any. That judgment remained in full force and effect. And on May 21, 1875, Palmer conveyed this land to one Hollis, from whom by mesne conveyances these defendants claimed title.

The Superior Court gave judgment for the defendants, and the plaintiff appealed to the Supreme Court of California, which affirmed the judgment; and the plaintiff sued out this writ of error.

Opinions of the Supreme Court Commissioners and of the Supreme Court of the State were filed in the case and copied in the record. The Commissioners were of opinion that under the rule stated in Ioadley v. San Francisco, 50 California, 265; Sawyer v. San Francisco, 50 California, 370, and Hoadley v. San Francisco, 70 California, 320, and 124 U. S. 639, the compromise could not be sustained, for want of power in the city to make it; but that the judgment pleaded was a bar, according to the decision in San Francisco v. Holliday, 76 California, 18. The Supreme Court was of opinion that the judgment should be affirmed, for the reasons given in the opinion of the Commissioners. 22 Pacific Reporter, 75.

Mr. John L. Love, Mr. George Flournoy and Mr. J. B. Mhoon, for plaintiff in error.

Mr. Thomas D. Riordan, Mr. William Leviston and Mr. George Leviston, for defendants in error.

MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.

This court has no jurisdiction to review a judgment of the highest court of a State, unless a federal question has been, either in express terms or by necessary effect, decided by that court against the plaintiff in error. Rev. Stat. § 709; New Orleans Waterworks v. Louisiana Sugar Refining Co., 125 U. S. 18; De Saussure v. Gaillard, 127 U. S. 216; Hale v. Akers, 132 U. S. 554.

In the present case, the record of the pleadings, findings of

Syllabus.

fact and judgment shows that it was unnecessary for that court to decide, and its opinion filed in the case and copied in the record shows that it did not decide, any question against the plaintiff in error, except the issue whether the former judg ment rendered against it and in favor of the grantor of the defendants in error was a bar to this action. That was a question of general law only, in nowise depending upon the Constitution, treaties or statutes of the United States. Chouteau v. Gibson, 111 U. S. 200.

Writ of error dismissed for want of jurisdiction.

SCHRADER v. MANUFACTURERS' NATIONAL BANK OF CHICAGO.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 1370. Submitted January 9, 1890. — Decided January 20, 1890.

A national bank went into voluntary liquidation in September, 1873. Before that it had become liable to a state bank, as guarantor on sundry notes, made by a third person, and which were discounted for it by the state bank. In August, 1874, transactions took place between the maker of the notes and the state bank, and the person who acted as the president of the national bank, whereby the maker was released from further liability on the notes, but such acting president attempted to continue, by agreement, the liability of the national bank as guarantor. In a suit begun in October, 1876, a judgment on the guaranty was obtained in May, 1880, by the state bank against the national bank. In a suit brought by a creditor against the national bank and its stockholders to enforce their statutory liability for its debts, the court on an application made in June, 1887, enquired into the liability of the stockholders to have the claim of the state bank enforced as against them, in view of the transactions of August, 1874, and disallowed that claim; Held,

(1) It was proper to reëxamine the claim;

(2) The judgment against the bank was not binding on the stockholders, in the sense that it could not be reëxamined;

(3) The guaranty of the bank was released as to the stockholders by the release of the maker of the notes;

(4) The rights of the stockholders could not be affected by the acts of the president done after the bank had gone into liquidation.

Opinion of the Court.

IN EQUITY. The case is stated in the opinion.

Mr. Franklin A. McConaughy for appellant.

Mr. Henry G. Miller for appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a case growing out of that of Richmond v. Irons, 121 U. S. 27, and involves a claim against the assets of the Manufacturers' National Bank of Chicago. In the suit of Irons against that bank, by an order of the Circuit Court of the United States for the Northern District of Illinois, one Harvey was appointed receiver of the bank. That court, on July 23, 1883, referred it to a master, to report the amount of the debts of the bank, the value of its assets, and the amount of assessment necessary to be made on each share of its capital stock in order to pay its debts. Among the claims presented before the master was that of the assignee of the People's Bank of Belleville, Illinois, who claimed to be a creditor in the sum of $84,103.48; and the master reported in favor of the claim. It was based on a judgment for $67,277 obtained in the same Circuit Court, May 31, 1880, by the People's Bank against the Manufacturers' Bank. The judgment was founded on eight promissory notes for $5000 each, dated August 5, 1873, made by Henry E. Picket, payable one year after date, to the order of Picket, at the Manufacturers' Bank, with interest at ten per cent per annum, payable semiannually, and with ten per cent per annum interest after maturity, endorsed by Picket, the payment of each note, principal and interest at maturity being guaranteed by the Manufacturers' Bank. The notes were secured by a trust deed on real estate, made by Picket to one Joseph A. Holmes.

On the 1st of June, 1886, the Circuit Court made a decree directing various shareholders to pay to the receiver, for the benefit of the creditors of the bank, certain sums of money. An appeal was taken to this court by several of the stockholders and was heard, and is the case reported as Richmond v. Irons, 121 U. S. 27. The decision was announced March 28,

Opinion of the Court.

1887, the decree of the Circuit Court was reversed, and the cause was remanded with directions to proceed in conformity with the opinion of this court. After that decision, and before the mandate was presented to the Circuit Court, and on the 20th of June, 1887, on the application of several of the stockholders, the case was referred back to the master, to report again upon the amount of the debts due by the bank, and upon the amount of the assessment necessary to be made on each share of its capital stock, to pay its debts, and upon the amount payable by each shareholder on such assessment, and also to take further proofs in regard to the validity of the claim of the People's Bank, as against the stockholders of the Manufacturers' Bank, and as to whether that claim had been in whole or in part released, discharged, or defeated, by reason of any new matters stated in such application.

On the 16th of June, 1888, the master reported that the claim of the People's Bank ought to be disallowed upon the new proofs taken. Those proofs accompanied his report. The assignee of the People's Bank excepted to the report, and the matter was heard before Judge Blodgett. His opinion is reported in 36 Fed. Rep. 843. He confirmed the report and overruled the exceptions, and, on the 27th of March, 1889, a decree was entered upon the mandate of this court, vacating the decree of June 1, 1886, giving a list of the valid, outstanding claims against the bank, (which did not include the claim of the assignee of the People's Bank,) adjudging what sums were to be paid by the various stockholders, and taxing costs to the amount of $158.60 against the People's Bank and its assignee. The assignee appealed to this court from the decree, because it disallowed his claim, and because of the award of costs against the People's Bank and its assignee.

The Manufacturers' Bank became insolvent and suspended payment on September 23, 1873, and, in pursuance of the national banking act, went into voluntary liquidation on September 26, 1873.

In regard to the claim of the assignee of the People's Bank, the master reported as follows: "I find and report that the claim of the assignee of the People's Bank of Belleville is