Argument for Defendant in Error.

215 U. S.

to the Massachusetts decree the effect which the wife claimed it had by law and usage in Massachusetts.

The issue in the present case arises on a different state of facts from the facts upon which the Massachusetts proceedings were predicated.

Mr. George Zabriskie for defendant in error:

In a suit of this character it is necessary in New York, as well as in the Federal courts, and elsewhere to allege and prove two distinct things: first, that the party complaining had a good defense on the merits to the claim upon which the judgment impeached was rendered; and second, that he was prevented from availing himself of that defense by the fraud of the other party. 2 Story, Equity, § 885a; Blank v. Blank, 107 N. Y. 91; Whittlesey v. Delaney, 73 N. Y. 571; Kimberly v. Arms, 40 Fed. Rep. 548; White v. Crow, 110 U. S. 183; Ableman v. Roth, 12 Wisconsin, 81; Dobbs v. St. Joseph Fire Ins. Co., 72 Missouri, 189; Williams v. Nolan, 58 Texas, 708.

The judgment of the Court of Appeals proceeded upon two grounds, of which at least one presents no Federal question.

The judgment of the Court of Appeals rests quite as much upon their determination of the issue of fraud, which involves no Federal question.

In such a case this court will not assume jurisdiction. Allen v. Arguimbau, 198 U. S. 149; Dibble v. Bellingham Bay Land Co., 163 U. S. 63; Johnson v. Risk, 137 U. S. 300; Klinger v. Missouri, 13 Wall. 257.

No Federal question is involved.

A right, privilege or immunity claimed under the Constitution must, under clause 3 of 8 709 of the Revised Statutes of the United States, be claimed in the court below by the party seeking the advantage of it. Johnson v. N. Y. Life Ins. Co., 187 U. S. 491, 495; Eastern Building & Loan Assn. v. Williamson, 189 U. S. 122; Glenn v. Garth, 147 U. S. 360; Lloyd v. Matthews, 155 U. S. 222.

Where the plaintiff in error claims merely that the state

215 U.S.

Argument for Defendant in Error.

court erroneously construed the judgment of a court of another State, without denying that the state court gave to the judgment the effect which such construction warrants, there is no question of faith and credit involved which this court has jurisdiction to review. Allen v. Alleghany Company, 192 U. S. 458; Finney v. Guy, 189 U. S. 335; Johnson v. N. Y. Life Ins. Co., 187 U. S. 491; Banholzer v. N. Y. Life Ins. Co., 178 U. S. 402; Lloyd v. Matthews, 155 U. S. 222; Glenn v. Garth, 147 U.S. 360.

If upon any ground this court have jurisdiction, the judgment of the state court upon the plea of res judicata is right.

A final decree of a court of competent jurisdiction, upon the merits of the cause, is conclusive between the parties upon the material matters thereby necessarily determined. Embury v. Connor, 3 N. Y. 511, 552; Dobson v. Pearce, 12 N. Y. 156; Prey v. Hegeman, 98 N. Y. 351; Griffin v. Long Island R. R. Co., 102 N. Y. 449.

Such being the ordinary rule of law there is no evidence in the record to indicate that in Massachusetts the decree of the probate court would be accorded any other or different faith or credit.

In ascertaining what credit is given to judicial proceedings in the State where they took place, this court is limited to the evidence on that subject before the court whose judgment is under review. Tilt v. Kelsey, 207 U. S. 43, 57.

The conclusiveness of the decree is not impaired by the fact that the cause of action in the suit in which the judgment was rendered is different from the cause of action in the suit at bar. Doty v. Brown, 4 N. Y. 71; Lythgoe v. Lythgoe, 75 Hun, 147; S. C., 145 N. Y. 641.

In such instances the judgment is conclusive as to those matters in issue upon the determination of which the finding or verdict was actually rendered. Cromwell v. County of Sac, 94 U. S. 351, 352, 353; Southern Pacific R. R. Co. v. United States, 168 U. S. 1, 48, 49; Bell v. Merrifield, 109 N. Y. 202, 211.

The form of the proceeding does not effect the conclusive

ness of the decree. The efficacy of the judicial determination attaches no less to summary, special or statutory proceedings, than to actions. Culross v. Gibbons, 130 N. Y. 447; Reich v. Cochran, 151 N. Y. 122; Smith v. Zalinski, 94 N. Y. 519; Matter of Livingston, 34 N. Y. 555.

The sufficiency of the proof upon which the court acted is not open to consideration where the judgment is pleaded as a bar or is relied on as evidence; otherwise the judgment would not be conclusive, and there could be no such thing as res judicata. Crescent Live Stock Co. v. Butchers' Union, 120 U. S. 141, 159; Deposit Bank v. Frankfort, 191 U. S. 449, 510; Grignon's Lessee v. Astor, 2 How. 319, 339; Comstock v. Crawford, 3 Wall. 396, 406.

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

We have no concern about the disposition made by the state court of questions of mere local law, and have only to inquire whether, as required by the Constitution of the United States, it gave full faith and credit to the proceedings had in the Probate Court in Massachusetts. Const., Art. IV, § 1. If it did, the judgment must be affirmed; otherwise, reversed. That the proceedings in the latter court were judicial in their nature, and that the New York court intended to give them full faith and credit, cannot be doubted. The Probate Court is a court of record, established by the General Court of Massachusetts under the authority of the constitution of that Commonwealth. Const. Mass. 1822; Pub. Stat. Mass. 1882, p. 871, c. 156. It has jurisdiction when a wife for justifiable cause is actually living apart from her husband to make such order as it deems expedient concerning her support. Ibid. And when it has jurisdiction of the parties and subjectmatter its decree, until reversed or modified, is as conclusive in Massachusetts as the judgments of other courts there. Watts v. Watts, 160 Massachusetts, 464; Langhton v. Atkins, 1 Pick. 535; Dublin v. Chabourn, 16 Massachusetts, 433.

In the suit in Massachusetts the fundamental fact was put in issue as to whether the plaintiff was the wife of the defendant and entitled, as such, to sue for support while living apart from her alleged husband. The New York court adjudged that, as between the parties, and, so far as the question before us is concerned, that fact had been determined by the Massachusetts court adversely to the plaintiff; for, the latter court ruled, after hearing the parties, that the relief asked from it should not be granted and dismissed the plaintiff's petition. So reads the record of the Massachusetts court.

It is said, however, that for aught that appears from the record of the Probate Court, as produced herein, that court may have declined to grant the relief asked by the alleged wife without considering at all the fact of her marriage, but only on the ground that she was living apart from the defendant without justifiable cause. But the answer to this contention is that the question whether the plaintiff was the lawful wife of the defendant, as well as the question whether she was entitled to separate maintenance while living apart from her alleged husband, were in issue in the Probate Court, and if, in order to prove that the court below gave undue faith and credit to the Massachusetts judgment, the plaintiff was entitled to show by oral testimony that there was really no dispute in the Probate Court as to the fact of her being the wife of the defendant, and that the only actual dispute at the hearing was whether she had justifiable cause for living apart from him, no such proof appears to have been made by her. No bill of exceptions as to the evidence in the Probate Court seems to have been taken, and we have before us only a record showing that the plaintiff, claiming to be the wife of the defendant herein, sued for separate maintenance and support, alleging that she was living apart from him for justifiable cause, and that the relief asked was denied and her petition dismissed without any statement of the specific grounds on which the court proceeded and without any qualifying words indicating that the decree was otherwise than upon the merits

as to the issues made. We concur with the Court of Appeals of New York in holding that as the Probate Court had jurisdiction of the parties and the subject-matter, its judgment, rendered after hearing, that the plaintiff was not entitled to the relief demanded by her and that her petition be dismissed, it must be taken, upon the record of this case, that the latter court determined against the plaintiff the fact of her being the wife of the defendant at the time she sought separate maintenance and support.

It is doubtful whether the plaintiff, in her pleadings or otherwise, sufficiently asserted any right belonging to her under the Constitution of the United States. But if it were assumed that she did, the result, even upon that hypothesis, is that, upon the present showing by the plaintiff, there is no substantial ground to contend that the court below did not give such faith and credit to the judgment of the Probate Court of Massachusetts as were required by the Constitution, and, therefore, this court has no authority to review the final judgment of the New York court. The writ of error must be dismissed.

It is so ordered.

BALTIMORE AND OHIO RAILROAD COMPANY v. INTERSTATE COMMERCE COMMISSION.

ON CERTIFICATE FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MARYLAND.

No. 339. Argued October 15, 18, 1909.—Decided December 6, 1909.

Only distinct points of law that can be distinctly answered without regard to other issues can be certified to this court on division of opinion: the whole case cannot be certified even when its decision turns upon matter of law only.

Appellate jurisdiction implies the determination of the case by an inferior court, and the transfer of the case to the appellate court without such determination amounts to giving the appellate court original jurisdiction.