APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
No question of the jurisdiction of the Circuit Court has been certified to this court; and the appellate jurisdiction of this court is sought to be maintained upon the single ground that the case "involves the construction or application of the Constitution of the United States," within the meaning of the Judiciary Act of March 3, 1891, c. 517, § 5. 26 Stat. 828.
But, in order to bring a case within this clause of the act, the Circuit Court must have construed the Constitution, or applied it to the case, or must, at least, have been requested and have declined or omitted to construe or apply it. No construction or application of the Constitution can be said to have been involved in the judgment below, when no construction or application thereof was either expressed or asked for.
The case at bar, as shown by the record, was simply this: Gage made two mortgages of land, conveyed the eqity of
redemption to Tucker, and died, leaving a widow and minor children, and a will appointing his widow, Tucker and a third person his executors, and devising all his real estate to them. The mortgages were foreclosed, pursuant to a decree pro confesso, upon a bill in equity, which stated the above facts, and in which Tucker was named as a defendant, as executor of Gage, and as guardian of his minor children, but not in his individual capacity, and was described in the same way in the subpoena. Cornell, claiming title by deed from Tucker's heirs, brought the present bill to redeem the land from the mortgages, and to set aside the proceedings for foreclosure; and therein alleged that Tucker owned the land at the time of all those proceedings, and until his death, and was not made a party to those proceedings, nor subject to the orders of the court therein, and that the decree of foreclosure was of no binding force or effect upon Tucker, or upon his heirs, or upon Cornell as their grantee.
The Circuit Court, upon general demurrer, dismissed this bill for want of equity, holding that in the former suit Tucker was sufficiently made a party to bind him by the decree in his individual, as well as in his representative capacity. 43 Fed. Rep. 105.
The Constitution of the United States is not mentioned in the bill of Cornell, or in the demurrer of the defendant, or in the decree or the opinion of the court. The case appears to have been treated throughout as depending upon a question of chancery practice, not of constitutional right. The first indication of anything like an intention on the part of the plaintiff to invoke the protection of the Constitution of the United States is in the suggestion, in the assignment of errors, "that said finding deprived said complainant of his property without due process of law."
The case is governed in every respect by recent decisions construing the same clause of the act of Congress.
In a case decided at this term, it was said by the Chief Justice, in delivering judgment: "A case may be said to involve the construction or application of the Constitution of the United States, when a title, right, privilege or immunity is
claimed under that instrument; but a definite issue in respect of the possession of the right must be distinctly deducible from the record, before the judgment of the court below can be revised on the ground of error in the disposal of such a claim by its decision. And it is only when the constitutionality of a law of the United States is drawn in question, not incidentally, but necessarily and directly, that our jurisdiction can be invoked for that reason. An assignment of errors cannot be availed of to import questions into a cause which the record does not show were raised in the court below and ...