U.S. Supreme Court AMERICAN SURETY CO. v. BALDWIN, 287 U.S. 156 (1932)

[Page 287 U.S. 156, 163]

the cause; that the question which had necessarily been presented was, 'Did the surety company, in its undertaking, become a party liable for every part of the judgment appealed from which might be affirmed by the Supreme Court, or did it stipulate only as to such judgment or part thereof as might be affirmed against the Singer Sewing Machine Company?' that the trial court thus had the power and duty to construe the bond; that 'whether it decided right or wrong, its decision was a judgment which could be reviewed for error, if there was error, only by' the Supreme Court on appeal; and that the alleged error could not be raised on motion to vacate. 50 Idaho, 609, 614-616, 299 P. 341, 344.

The surety company petitioned for a rehearing. In that petition, besides reiterating several of its previous contentions, it urged, for the first time, that the rendition of the judgment on its undertaking violated the due process clause of the Fourteenth Amendment. [Footnote 3] The petition was denied without opinion. The federal claim there made cannot serve as the basis for review by this Court. The contention that a federal right had been violated rests on the action of the trial court in entering judg-

[Page 287 U.S. 156, 169]

state practice was lost because the surety company inadvertently pursued the wrong procedure in the state courts. Instead of moving to vacate, it should have appealed directly to the state Supreme Court. When later it pursued the proper course, the time for appealing had elapsed. The fact that its opportunity for a hearing was lost because misapprehension as to the appropriate remedy was not removed by judicial decision until it was too late to rectify the error does not furnish the basis for a claim that due process of law has been denied. Compare O'Neil v. Northern Colorado Irrigation Co., 242 U.S. 20, 26, 37 S.Ct. 7. Having invoked the state procedure which afforded the opportunity of raising the issue of lack of notice, the surety company cannot utilize the same issue as a basis for relief in the federal court. Federal claims are not to be prosecuted piecemeal in state and federal courts, whether the attempt to do so springs from a failure seasonably to adduce relevant facts, as in Grubb v. Public Utilities Commission, 281 U.S. 470, 479, 50 S.Ct. 374; or from a failure seasonably to pursue the appropriate state remedy. [Footnote 6]

In No. 3, writ of certiorari dismissed.

In No. 21, decree reversed. Footnotes

Footnote 1 Vivian F. Baldwin and E. R. Baldwin, Plaintiffs, v. Singer Sewing Machine Company, a Corporation, and Ed. Anderson, Defendants.

Whereas, the defendant, Singer Sewing Machine Company, a corporation, in the above entitled action has appealed to the Supreme Court of the State of Idaho from the judgment made and entered against it in the above entitled action and in the above entitled court in favor of the plaintiffs in said action on the 31st day of May, 1928, for the sum of Nineteen Thousand Five Hundred ($19,500.00) Dollars and for Seventy-three and 70/100 ($73.70) Dollars costs in said suit, making a total of Nineteen Thousand Five Hundred and Seventy-three and 70/100 ($19,573.70) Dollars, and from the whole of said judgment;

And whereas, the said appellant, Singer Sewing Machine Company, a corporation, is desirous of staying the execution of said judgment so appealed from;

Footnote 2 The Idaho Statute was so construed by the Circuit Court of Appeals for the Ninth Circuit in United States Fidel. & Guar. Co. v. Fort Misery Highway Dist., 22 F.(2d) 369, 373, and in empire State-Idaho Mining & Developing Co. v. Hanley (C.C.A.) 136 F. 99. See, also, Calif. Code Civ. Proc. 942; Meredith v. Santa Clara Mining Ass'n of Baltimore, 60 Cal. 617, 619; Hitchcock v. Caruthers, 100 Cal. 100, 103, 34 P. 627; Hawley v. Gray Bros. Artificial Stone Paving Co., 127 Cal. 560, 561, 60 P. 437. The California provision was the prototype for the Idaho statute in question. See Naylor & Norlin v. Lewiston & S.E. Elec. Ry. Co., 14 Idaho, 722, 725, 95 P. 827. Compare Hartford Accident & Indemnity Co. v. Bunn, , 52 S.Ct. 354; Capital National Bank v. Board of Supervisors, 286 U.S. 550, 52 S.Ct. 504; Fidelity Union Casualty Co. v. Hanson, 287 U.S. 599, 53 S.Ct. 12, 77 L.Ed. --; Louisville & Nashville R.R. Co. v. Parker, 287 U.S. 569, 53 S.Ct. 94, 77 L.Ed. --; Toledo Scale Co. v. Computing Scale Co. (C.C.A.) 281 F. 488, affirmed 261 U.S. 399, 43 S.Ct. 458.

Footnote 3 The petition to this Court for a writ of certiorari, although filed October 30, 1931, was not granted until April 25, 1932, 286 U.S. 536, 52 S. Ct. 499; action thereon being withheld 'awaiting the action of the Supreme Court of Idaho in the matters pending before it.' The actions referred to were two further steps taken by the surety company in the Idaho courts to be relieved of the original judgment against it. The fist was a motion to correct, amend, and vacate the original judgment. This motion the trial court overruled, and its order was upheld on appeal to the Supreme Court of Idaho. 13 P.(2d) 650, decided July 12, 1932, rehearing denied September 10, 1932. The second was a direct appeal to the Supreme Court of Idaho from the original judgment; this appeal was dismissed because taken more than 90 days after the entry of the judgment appealed from. 51 Idaho, 614, 8 P.(2d) 461, decided February 21, 1932.

Footnote 4 In Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S.Ct. 93, the petitioner had not been allowed to become a party to the prior litigation in the state court.

Footnote 5 The opinion in that case makes it clear that the effect of the prior judgment as a bar does not rest merely on a rule of practice or, where the second proceeding is in equity, on the adequacy of the remedy at law. The court said: 'In this state the appellant had a choice between two remedies, and he chose to file his motion to vacate the judgment in the case in which the judgment was rendered upon the same facts as pleaded in the complaint in the action involved, and the court after hearing the motion decided the facts against the appellant, holding that the judgment was not void, and the order so holding was appealable.

But appellant refused to exercise his right of appeal and brought this suit in equity to enjoin the collection of said judgment. He had his day in court in that action, and the decision of that motion upon the question of jurisdiction was res adjudicata. The appellant had the right either to attack said judgment by motion in the original case or by bringing this action to enjoin or to have it set aside. If he proceeded by motion and the court decided against him, the decision of that question, until reversed upon appeal, is final and binding on the parties.' 21 Idaho, 598, 603, 604, 123 P. 481, 482, Ann. Cas. 1913E, 120.

Compare the effect, under Idaho law, of a decision on a motion to set aside a judgment because of the mistake, inadvertence, or excusable neglect of the defendant, or to allow an answer to the merits to be interposed after judgment where summons was not served personally on the defendant. Motions of this kind are allowed by express statute. Idaho Comp. Stat. 6726. They present a matter for judicial discretion, Mortgage Co. Holland America v. Yost, 39 Idaho, 489, 228 P. 282; and their determination does not bar a renewal motion. See Dellwo v. Petersen, 34 Idaho, 697, 203 P. 472. But motions of this kind are to be distinguished from those attacking the judgment as void for want of jurisdiction. Armitage v. Horseshoe Bend Co., Ltd., 35 Idaho, 179, 204 P. 1073; Shumake v. Shumake, 17 Idaho, 649, 107 P. 42.

Footnote 6 The cases are many in which failure to comply with state rules of practice has prevented this Court from considering a federal claim on direct review. See, e.g., cases where the claim was not considered by the highest court of the state because it was not raised by the proper procedure, Brown v. Massachusetts, 144 U.S. 573, 580, 12 S.Ct. 757; Hulbert v. Chicago, 202 U.S. 275, 281, 26 S.Ct. 617; or by the proper pleadings, Atlantic Coast Line R.R. v. Mims, , 535-537, 37 S.Ct. 188; Nevada-California-Oregon Ry. v. Burrus, 244 U.S. 103, 104-105, 37 S.Ct. 576; or was not raised at the proper stage of the proceedings, Spies v. Illinois, 123 U.S. 131, 181, 8 S.Ct. 21; Baldwin v. Kansas, , 56-57, 9 S.Ct. 193; Jacobi v. Alabama, 187 U.S. 133, 23 S.Ct. 48; Layton v. Missouri, 187 U.S. 356, 23 S.Ct. 137; Louisville & Nashville R.R. Co. v. Woodford, 234 U.S. 46, 51, 34 S.Ct. 739; Missouri Pacific Ry. Co. v. Taber, , 201-202, 37 S.Ct. 522; Missouri, Kansas & Texas Ry. Co. v. Sealy, 248 U.S. 363, 365, 39 S.Ct. 97; Barbour v. Georgia, 249 U.S. 454, 460, 39 S.Ct. 316; Hartford Life Ins. Co. v. Johnson, , 493-494, 39 S.Ct. 336. Compare Michigan Central R.R. C., v. Mix, 278, U.S. 492, 496, 49 S.Ct. 207.