
204 U.S. 89 (1907)
NEWMAN
v.
GATES.
No. 137.
Supreme Court of United States.
Argued December 14, 17, 1906.
Decided January 7, 1907.
ERROR TO THE SUPREME COURT OF THE STATE OF INDIANA.
*92 Mr. Charles Martindale and Mr. S.S. Gregory for plaintiffs in error.
Mr. Edward E. Gates, with whom Mr. Albert Baker, Mr. Edward Daniels and Mr. Lewis C. Walker were on the briefs, for defendant in error.
MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.
A motion has been filed to dismiss the writ of error or to affirm, and we proceed at once to its consideration. Several grounds are urged in argument in support of the motion, but we do not find it necessary to do more than consider an objection based upon the absence of a Federal question.
The errors assigned are as follows:
"The Supreme Court of Indiana erred in holding and deciding:
"1. That the counterclaim set up by appellee Gates, the defendant, in the trial court, based upon a breach of the same contract of hiring, which was the basis of the action of the appellants against the appellee Gates, in the Circuit Court of Cook County, Illinois, was not adjudicated by the judgment in the Circuit Court of Cook County, Illinois, and by so deciding denied to the judgment of the Circuit Court of Cook County, Illinois, the force and effect which it has between the parties in the State of Illinois, wherein it was rendered, and denies full faith and credit to said judgment, contrary to and in *93 violation of Article 4, section 1 of the Constitution of the United States.
"2. That the appellee's counterclaim being valid and not merged and adjudicated by the judgment of the Circuit Court of Cook County, Illinois, it was of a nature which survived against the personal representatives of a member of the partnership of Newman, Northrop & Levinson, and that the personal representatives of the deceased partner were necessary parties to the appeal, and not having been made parties that neither the Appellate Court of the State of Indiana, nor the Supreme Court of the State of Indiana, has jurisdiction to determine the appeal and the same must be dismissed, and judgment of dismissal was so rendered. Which final judgment of the Supreme Court necessarily involved the adjudication of the claim of the appellants to the protection of Article 4, section 1, of the Constitution of the United States, `that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State,' which adjudication was adverse to appellants' claim under said provision of the Constitution of the United States."
These assignments plainly import that the Supreme Court of Indiana on dismissing the appeal considered and decided a question which had been submitted to the jury on the trial, viz., whether the matters alleged in the counterclaim as the basis for a recovery over against the plaintiffs had or had not been concluded by the Illinois judgment sued upon by the plaintiffs. We do not so construe the opinion and decision of the court.
The Appellate Court of Indiana had held on the first appeal that the action of the trial court, in refusing to admit evidence in support of the counterclaim, because the Illinois judgment constituted res adjudicata, was error. It had further decided that the counterclaim was "based upon a breach of contract," and constituted an independent, affirmative cause of action in favor of the defendant, and that whether the questions therein involved were in fact adjudicated in the Illinois action *94 was a question for the jury. As a result of this ruling evidence was introduced at the subsequent trial to establish what were the questions litigated and determined in the Illinois action and the extent to which by the laws of Illinois the judgment in that case possessed conclusive force.
Now, in the opinion delivered by the Supreme Court of Indiana, on dismissing the appeal, the court did not discuss or in anywise refer to the scope and conclusive effect of the Illinois judgment. Undoubtedly, the court, in view of the law of the case as declared on the first appeal, treated the counterclaim as containing allegations of actionable breaches of duty which might have formed the subject of an independent action, and it is likewise evident that the court was of opinion that the plaintiffs were bound to perfect their appeal from the judgment upon the counterclaim, upon the hypothesis that the counterclaim set forth a valid cause of action against three individuals, viz., the plaintiffs in the main action. But substantially the court only considered and disposed of a preliminary question as to its authority to pass upon the controverted questions contained in the record before it. It found that there were in the counterclaim averments which it had been held early in the litigation required to be submitted to a jury, that the record exhibited a recovery upon the counterclaim against three persons, and that one of such persons had died after the rendition of judgment against him and his associates. Construing the statutes of Indiana, the court held that the cause of action asserted in the counterclaim survived the death of the party deceased, against whom a recovery had been had, that such cause of action could have been revived against the personal representative of the deceased, and that the personal representative was a necessary party appellant, and, not having been made a co-appellant and served with notice of the appeal, the court was without jurisdiction to pass upon the errors assigned upon the appeal. To give effect to the assignments of error we should be obliged to make the impossible ruling that, despite the overruling of a demurrer *95 to the counterclaim by the trial court, and the decision in respect to that pleading made by the Appellate Court on the first appeal, a mere inspection of the counterclaim so plainly demonstrates that the pleading is destitute of merit that it should be held to have been the duty of the state court of last resort to have treated the pleading as a sham and to have disposed of the appeal upon the hypothesis that the counterclaim was non-existent.
The removal of the cause from the Appellate Court into the Supreme Court of Indiana vacated the decision of the former tribunal, and after transfer the case stood in the highest court of Indiana as though it had been appealed to that court directly from the trial court. Oster v. Broe, 161 Indiana, 113. Had the appeal been properly taken it would have been the duty of the Supreme Court of Indiana to pass upon the questions presented by the record before it, including, it may be, a Federal question, based upon the due faith and credit clause of the Constitution, which, on various occasions, was pressed upon the attention of the trial court. In legal effect, however, the case stands as though no appeal had been prosecuted from the judgment rendered by the trial court. As the jurisdiction of this court to review the judgments or decrees of state courts when a Federal question is presented is limited to the review of a final judgment or decree, actually or constructively deciding such question, when rendered by the highest court of a State in which a decision in the suit could be had, and as for the want of a proper appeal no final judgment or decree in such court has been rendered, it results that the statutory prerequisite for the exercise in this case of the reviewing power of this court is wanting.
Writ of error dismissed.
