# McNulty v. Batty

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United States Supreme Court
51 U.S. 72
McNulty v. Batty
THE facts in this case are stated in the opinion of the court. It was submitted on printed arguments by Mr. May, for the plaintiff in error, and Mr. Carlisle, for the defendants in error.
Mr. May's argument was as follows:
This case comes here by writ of error to the Supreme Court of Wisconsin Territory.
In the District Court of Iowa County, on the 3d of November, 1845, the plaintiff in error sued out his writ of attachment, in an action of debt against the defendants in error, founded on his affidavit (according to the law and practice of that territory).
The sheriff seized certain goods and chattels of one of the defendants, to wit, Legate, which, on motion, were ordered by the court to be sold.
The defendants, at the next term of said court, on the 4th of March, 1846, appeared by their counsel, and moved for a rule on plaintiff to file his declaration within three days, which was denied.
At the next term of the court, the plaintiff, by leave of the court, filed his declaration, containing three counts. The first upon a judgment against the defendants, recovered in the state of Illinois. The second on a bill of exchange, drawn by one of the defendants and accepted by the others. The third upon an account for goods, wares, and merchandise.
The defendants moved the court to strike out all the said counts except the first, on account of a variance, because the action was founded on the affidavit, which stated the judgment alone as the cause of action, which motion was granted; whereupon the defendants pleaded, and after several pleas, replications, and demurrers, issue was joined by agreement of the parties, and the cause tried by the court.
The plaintiff read a record of a judgment of the Circuit Court of Illinois.
The defendants then offered to read the record of the same case in the Supreme Court of Illinois (which showed a reversal of the judgment of the Circuit Court). The plaintiff objected to the offering of this record, because it was not properly authenticated, but the court overruled his objection, and he excepted.
Judgment was rendered for the defendants, by the District Judge.
Plaintiff moved for a new trial, and filed his reasons, which was denied.
The case was carried by writ of error to the Supreme Court of Wisconsin territory, where the judgment of the District Court was affirmed.
The plaintiff in error will contend here, that the judgment of the said Supreme Court ought to be reversed, because,--
First, the District Court erred in striking out the counts of the declaration as aforesaid, after defendants had appeared to the action. Statutes of Wisconsin concerning Attachments, § 7. Rowen v. Taylor, Wisconsin Reports, July term, 1842. He ought to have pleaded in abatement. McKenna v. Fisk, 1 How., 241; 11 Wheat., 280.
Second, the record of the said Supreme Court of Illinois was not duly authenticated, so as to be used as evidence in said suit, and ought not to have been received.
The certificate of Samuel H. Treat does not certify that the attestation of the clerk 'is in due form,' and styles him clerk of 'the State of Illinois.'
It appears also, on the face to the certificate, that the judge was 'an associate justice,' while the same record discloses that there was a 'chief justice' of said court. 1 Stat. at L., 122 (Act of May 26, 1790). 2 Stat. at L., 298.
Mr. Carlisle's argument was as follows.
The defendants in error were also defendants below. The action was commenced by attachment, in the District Court of Iowa County, Territory of Wisconsin. The affidavit of the plaintiff, dated 3d November, 1845, sets forth a debt 'arising out of, and based and founded upon, a judgment at law,' obtained three days before (31st October, 1845), in a county court of the state of Illinois. Pending the attachment, and before the plaintiff had declared, to wit, at the December term, 1845, of the Supreme Court of Illinois, the judgment upon which the attachment was founded was reversed. And this reversal having been pleaded and given in evidence on the trial of the attachment, in Wisconsin, the judgment was for the defendants.
The plaintiff carried the case, by writ of error, to the Supreme Court of the Territory of Wisconsin, where the judgment below was affirmed; and thence the case is brought to this court by writ of error.
The defendants in error will contend that there is no error in either of the points assigned.
1. As to the order to strike out the second and third counts in the plaintiff's declaration, it was addressed to the discretion of the court, and is not subject to be assigned for error. 1 Tidd, 559.
It was not excepted to in the court below.
But if the order can be reviewed here, it was well founded. The proceeding by attachment is regulated by the act of 1838-39. (Stat. of Wisconsin, p. 165, § 7.) The affidavit must specify the cause of action, which must be 'arising out of, founded upon, or sounding in contract, or upon the judgment or decree of some court of law or chancery.' Accordingly, the affidavit set forth the cause of action as 'arising out of, and based and founded upon, a judgment at law,' specifying the same. The attachment recites the same, specially and alone. The first count in the declaration is upon this judgment. But the judgment having been reversed in January, 1846, and the plaintiff in the attachment not declaring till October following, two other counts are added to that upon the judgment; viz, a count upon an instrument described as a bill of exchange, being the same which was merged in and extinguished by the judgment set forth in the first count, and a count for goods sold and delivered, which were the consideration for that 'bill of exchange.' The second and third counts were therefore merely frivolous and vexatious, and intended to evade the effect of the reversal of the judgment. And the court properly ordered them to be stricken out.
The second and third counts, if material, could only be so because they were variant from the first count, and consequently variant from the affidavit and the attachment.
2. As to the special demurrer to the defendant's second plea, the plea itself was immaterial. The first plea was nul tiel record, and put in issue the existence of the record set forth in the first count; and at the time of that plea pleaded there 'was no such record remaining in full force and effect,' & c., but the same had been reversed and annulled before the plaintiff filed his declaration. The record of such reversal was admissible in evidence upon the issue joined on that plea. From the time of the reversal 'it is no such record ab initio,' Green v. Watts, 1 Ld. Raym., 274; Knight's case, 1 Salk., 329; S.C.., 2 Ld. Raym., 1014.
It would appear that the demurrer should have been sustained. But the effect would have been simply an amendment. The plaintiff has not been prejudiced. He could not have recovered. Under such circumstances judgment will not be reversed.
But the plaintiff obtained leave to withdraw his demurrer, and put in a replication. He thereby waived his demurrer, and it cannot be revived here. Craig v. Blow, 3 Stew. (Ala.), 448; Peck v. Boggis, 1 Scam. (Ill.), 281; United States v. Boyd, 5 How., 29.
3. As to the objection to the admissibility of the record of the Supreme Court of Illinois, it was not specified at the trial. The precise objection was not disclosed till errors were assigned on the writ of error. This court will not now entertain it. Cambden v. Doremus, 3 How., 515.
But the objection itself was not well founded. Although the record was not authenticated according to the act of Congress, so as to have effect independently of the local law, yet it was authenticated in such manner and form as to be admissible in evidence in the courts of Wisconsin by virtue of the act of the legislature of that territory. Statutes of Wisconsin, p. 246; Act concerning Testimony, &c., § 51.
If the points assigned as error shall not have been sufficiently answered above, to the satisfaction of the court, the counsel for the defendants in error further suggests to the court the following objection to the jurisdiction.
Two acts of Congress were passed for the admission of Wisconsin into the Union, viz., Act 3d March, 1847 (9 Stat. at L., 178); and Act 29th May, 1848 (Id., 233). The first act prescribed a condition, upon compliance with which, and upon the annunciation of such compliance by the President's proclamation, the admission was to take effect. It does not appear that this condition was complied with; and it is supposed that the admission took effect exclusively under the second act, and that its date is the 29th of May, 1848.
The acts of Congress regulating the appellate jurisdiction of this court, and supposed to confer jurisdiction in this case, are 1847, ch. 17, and 1848, ch. 12 (9 Stat. at L., 128 and 211).
It is the second section of the act of 1848, ch. 12, which contains the general provision as to states thereafter to be admitted into the Union. It makes the provisions of the act of 1847, ch. 17, applicable, 'so far as may be,' to cases which may be pending in the Supreme Court of any territory at the time of its admission, and to cases in which judgments shall have been rendered in such Supreme Court at the time of admission, and not previously removed by writ of error or appeal.
The date of the admission is 29th May, 1848. The date of the judgment in the Supreme Court of the territory is 31st July, 1847. The citation upon this writ of error was served 4th December, 1847. The record was filed here 29th February, 1848. This case, therefore, was not 'pending in the Supreme Court of the territory' at the time of admission, nor was it a case in which judgment had been rendered there, 'and not previously removed by writ of error.'
But if it were in either of these categories, the provisions of the act of 1847 do not apply, and cannot 'be made applicable.' That act gave jurisdiction only in cases where the proceedings below were transferred to the Federal court, to which this court was authorized to send its mandate; and not in cases 'legally transferred to the state courts.'
The appellate jurisdiction of this court was not intended to be reserved except in cases of 'Federal character and jurisdiction.' Act 22d February, 1848, § 3.
The sixth section of the act for the admission of Wisconsinprovides only for the transfer to the Federal court of the records of judgments, &c., 'in cases arising under the Constitution and laws of the United States,' which is equivalent language to 'cases of Federal character and jurisdiction.'
The judgment below is 'legally transferred to the state court.' It is now a judgment in the Supreme Court of the state of Wisconsin. The record shows that it is not a case of Federal character and jurisdiction. But in such a case only can the mandate of this court go to the state court. (Martin v. Hunter, 1 Wheat.) And in such cases only do the acts in question provide for the operation of the mandate by transferring the records below from the territorial to the District Courts.
Mr. Justice NELSON delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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