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GREAT WESTERN TEL. CO. V. BURNHAM, 162 U. S. 339 (1896)

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U.S. Supreme Court

Great Western Tel. Co. v. Burnham, 162 U.S. 339 (1896)

Great Western Telegraph Company

No. 159

Argued and submitted March 19-20, 1896

Decided April 13, 1896

162 U.S. 339


When the highest court of a state, upon a first appeal, decides a federal question against the appellant and remands the case for further proceedings according to law, and upon further hearing the inferior court of the state renders final judgment against him, he cannot have that judgment reviewed by this Court by writ of error without first appealing from it to the highest court of the state, although that court declines upon a second appeal to reconsider any question of law decided upon the first appeal. chanroblesvirtualawlibrary

Page 162 U. S. 340

This was an action similar to that of Great Western Telegraph Company v. Purdy, ante, 162 U. S. 329, and was brought October 8, 1888, in the Circuit Court of Milwaukee County, in the State of Wisconsin, by the same plaintiff against George Burnham and prosecuted against his executors to recover the amount of an assessment alleged to be due under a contract of subscription in the same form as in that case, and under the decree of the Circuit Court of Cook County in the State of Illinois therein stated.

The complaint did not state the law of Illinois nor set forth the decree of assessment in full, but alleged, among other things that by that decree an assessment of thirty-five percent a share was laid upon all stockholders who had not paid in full, and that some stockholders, including the defendant, had paid ten dollars, or forty percent, on each share, and many stockholders had never paid more than fifty cents, or two percent, on a share.

A demurrer to the complaint upon the ground, among others, that it did not state facts sufficient to constitute a cause of action was filed by the defendant and overruled by the court.

Upon appeal by the defendant from the order overruling the demurrer, the supreme court of the state, as the record shows, adjudged that the order be reversed and the cause "remanded to the said circuit court for such further proceedings therein as may be according to law," and, in its opinion, after deciding that the assessment was unequal and unjust, added:

"We do not intend to express any definite opinion as to the real effect of the decree of the Illinois court, or as to how far it concludes the rights of shareholders who were not parties to that proceeding. Those questions are not now necessarily before us, and may be postponed until they arise. We confine our decision to the objection that the complaint shows an unlawful and illegal call or assessment upon Mr. Burnham which should not be enforced."

79 Wis. 47, 52-53.

The cause was accordingly remanded to the inferior court. The plaintiff refused to amend the complaint, and insisted chanroblesvirtualawlibrary

Page 162 U. S. 341

that it stated a sufficient cause of action, and relied upon the decree of assessment as a judgment of a court of the State of Illinois, entitled, under the Constitution and laws of the United States, to full faith and credit in the State of Wisconsin. The inferior court sustained the demurrer upon the ground

"that the complaint does not state facts sufficient to constitute a cause of action, because it does not appear upon the face of the said complaint that a valid or legal assessment was made upon the stockholders, and that the said assessment appears by the said complaint to be unequal and unjust,"

and entered final judgment for the defendant, with costs. The plaintiff thereupon sued out this writ of error.

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