U.S. Supreme Court Matheson v. Branch Bank of Mobile, 48 U.S. 7 How. 260 260 (1849)
Matheson v. Branch Bank of Mobile
48 U.S. (7 How.) 260
ERROR TO THE SUPREME COURT
OF THE STATE OF ALABAMA
Where the highest court of a state affirmed the judgment of a court below because no transcript of the record was filed in the appellate court, such affirmance cannot be reviewed by this Court under the twenty-fifth section of the Judiciary Act.
The intention of the parties to raise a constitutional question is not enough. It must be actually raised and decided in the highest court of the state.
In 1845, the Branch Bank of Mobile obtained a judgment in the Circuit Court of Mobile county (state court) against Maria Matheson, John Darrington, and Robert D. James, for the sum of ten thousand five hundred and seventy-three dollars and eighty-two cents.
On 29 May, 1846, the defendants sued out a writ of error, returnable to December term, 1846, of the Supreme Court of the State of Alabama. Billups Gayle, John Gayle, and Edward M. Ware became their securities upon the appeal bond.
On 22 January, 1847, being a day of the December term, 1846, the counsel of the Branch Bank filed a certificate of the clerk of the court below, stating the judgment and writ of error, when it appearing that no transcript of the record was filed, the Supreme Court of the State of Alabama
affirmed the judgment of the court below, and also entered up judgment against the securities in the appeal bond.
In April, 1847, the defendants sued out a writ of error, and brought the case up to this Court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The record in this case is a very brief one. It states that a certificate was filed in the Clerk's office of the Supreme Court of the State of Alabama, from the Clerk of the Circuit Court for Mobile county setting forth that a judgment had been obtained in that court by the bank against the plaintiffs in error for the sum of $10,573.82 and costs, from which judgment they had presented a writ of error to the supreme court, and that this certificate having been produced in the supreme court by the attorney for the bank, and the transcript of the record in the circuit court not having been filed, the writ of error was thereupon dismissed, and the judgment of the circuit court affirmed. It is upon this judgment that the writ of error has been presented to this Court.
It appears from the argument against the motion that the question intended to be raised here is whether the acts of the State of Alabama creating a bank and branches are not in violation of the tenth section of the first article of the Constitution of the United States, which declares that "no state shall emit bills of credit."
But in order to bring that question before this Court, it should have been raised in the supreme court of the state and have been there decided. There are many cases in the reports in which this Court has so ruled. In this case, the supreme court of the state dismissed the writ of error to the circuit court and affirmed its judgment because the plaintiffs in error had not filed a transcript of the record, and no question as to any matter of right in contest in the suit was raised or decided. There is nothing, therefore, in the record which this Court is authorized to review, and the writ of error must be
Dismissed for want of jurisdiction.
This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Alabama and was argued by counsel. On consideration whereof, and it appearing to the court upon an inspection of the said transcript that
there is nothing in the record which this Court is authorized to review, it is thereupon now here ordered and adjudged by this Court that this cause be and the same is hereby dismissed for want of jurisdiction.