No. 21

Argued: Decided: November 14, 1932

[287 U.S. 156, 157]   Messrs. Wm. Marshall Bullitt, of Louisville, Ky., Allan C. Rowe, of New York City, and Oliver O. Haga and Frank Martin, both of Boise, Idaho, for American Surety Co.

[287 U.S. 156, 158]   Mr. James F. Ailshie, Jr., of Boise, Idaho, for Baldwin and others.

Mr. Justice BRANDEIS delivered the opinion of the Court.

In each of these cases, the American Surety Company of New York seeks to be relieved from a judgment in favor of the Baldwins entered against it by an Idaho [287 U.S. 156, 159]   court for.$22,357.21 and interest, on a supersedeas bond. No. 3, which is here on certiorari to the Supreme Court of Idaho, brings the record of the cause in which that judgment was entered. 286 U.S. 536 , 52 S.Ct. 499. No. 21 is here on certiorari to the United States Circuit Court of Appeals for the Ninth Circuit, which reversed the decree of the federal court for Idaho denying the surety company’s application to enjoin the enforcement of the judgment and dismissing the bill. 286 U.S. 537 , 52 S.Ct. 500. In each case it is claimed that the judgment is void under the due process clause of the Fourteenth Amendment.

The bond was given upon the appeal of the Singer Sewing Machine Company and Anderson, its employee, to the Supreme Court of Idaho from a judgment for $19,500 recovered against them by the Baldwins in an Idaho district court for an automobile collision. The defendants had given a joint notice of appeal ‘from that certain judgment … against the defendants and each of them, and from the whole thereof.’ Pursuant to the statutes (Idaho Compiled Statutes, 7154 and 7155), two bonds were given by the surety company; both being executed only by it. One was in the sum of $300 for costs; the other was the supersedeas bond in the sum of $25, 000 here in question, copied in the margin. 1 It recited that, [287 U.S. 156, 160]   ‘if the said judgment appealed from, or any part thereof, be affirmed’ and ‘if the said appellant does not make such payment within thirty days from the filing of the remittitur from the Supreme Court in the court from which the appeal is taken, judgment may be entered on motion of the respondents in their favor against the undersigned surety.’

___ Now, therefore, the undersigned American Surety Company, a corporation authorized to, and doing business in the State of Idaho, in consideration of the premises and of such appeal on the part of said appellant, Singer Sewing Machine Company, a corporation, does hereby acknowledge itself firmly bound in the sum of Twenty-five Thousand ($25, 000.00) Dollars, gold coin of the United States, that if the said judgment appealed from, or any part thereof, be affirmed, or the appeal dismissed, the appellant will pay in gold coin of the United States of America, the amount directed to be paid as to which said judgment shall be affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal, and that if the said appellant does not make such payment within thirty days from the filing of the remittitur from the Supreme Court in the court from which the appeal is taken, judgment may be entered on motion of the respondents in their favor and against the undersigned surety for the said sum of Nineteen Thousand Five Hundred Seventy-three and 70/100 ($19,573.70) Dollars, together with the interest that may be due thereon and the damages and costs which may be awarded against the said appellant, Singer Sewing Machine Company, upon the appeal.

In Witness Whereof, the said American Surety Company, has caused its name and seal to be attached hereto by its proper officers and agents at Boise, Idaho, this 28th day of August, 1928

American Surety Company of New York, By Howard E. Stein, Attorney-in-Fact Countersigned: Howard E. Stein, Agent at Boise, Idaho. [287 U.S. 156, 161]   The Supreme Court affirmed the judgment as to Anderson and reversed it as to the Singer Company. Baldwin v. Singer Sewing Machine Co. and Anderson, 49 Idaho, 231, 287 P. 944. Upon the filing of the remittitur, the appropriate new judgment against Anderson was entered in the trial court. That judgment having remained unpaid more than thirty days, the Baldwins, without giving notice to either of the original defendants or to the surety company, moved the trial court to enter judgment against the latter. On June 23, 1930, judgment was so entered against the surety company in the sum of.$22,357.21 and interest, with a provision ‘that the plaintiffs have execution therefor.’

The surety company concedes that by executing the supersedeas bond it became, by the laws of Idaho, a party to the litigation,2 and that, if the effect of the bond was to stay the judgment as against Anderson, consent had thereby been given to the entry of judgment without notice and the judgment would be unassailable. Compare Pease v. Rathbun-Jones Engineering Co., 243 U.S. 273, 279 , 37 S.Ct. 283, Ann.Cas.1918C, 1147. Its contention is that the bond, properly construed, [287 U.S. 156, 162]   did not stay the judgment as against Anderson, but solely as against the Singer Company; that hence the surety company had not consented to the entry of a judgment against it upon Anderson’s failure to pay; and that, since the judgment against it was entered without giving it notice and the opportunity of a hearing on the construction and effect of the bond, the judgment is void under the due process clause of the Fourteenth Amendment.

First. The certiorari granted in No. 3 to review the judgment rendered by the Supreme Court of Idaho on May 2, 1931 (50 Idaho, 606, 299 P. 341), must be dismissed for failure to make seasonably the federal claim. The proceedings culminating in that judgment were these. On June 26, 1930, three days after the entry by the Idaho district court of judgment against the surety company on the supersedeas bond, it filed a motion in that court to vacate and set aside the judgment. The grounds there urged in support of the motion were wholly state grounds. They were that the judgment was void, because there had been no breach of condition of the bond, properly construed; that the judgment had been entered without notice to either the surety company or the Singer Company; and that the enforcement of the judgment would be contrary to good conscience and equity. After hearing arguments on the motion, the Idaho district court ordered that the judgment be vacated and set aside, and that the execution issued pursuant thereto be quashed. The Baldwins appealed to the Supreme Court of Idaho; and, upon the presentation of their appeal, no federal question was raised by either party. The Supreme Court, on May 2, 1931, reversed the order vacating the judgment. It declared that the only issue before the trial court on motion to vacate was its own jurisdiction to render the judgment against the surety company on the supersedeas undertaking; that such jurisdiction existed by virtue of the surety company’s execution of the undertaking in [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. 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- [287 U.S. 156, 164]   ment without giving notice and an opportunity to be heard. The same ground of objection had been raised throughout the proceedings, but solely as a matter of state law. There had been ample opportunity earlier to present the objection as one arising under the Fourteenth Amendment. Compare Corkran Oil Co. v. Arnaudet, 199 U.S. 182, 193 , 26 S.Ct. 41; Godchaux Co. v. Estopinal, 251 U.S. 179, 181 , 40 S.Ct. 116; Live Oak Water Users’ Ass’n v. Railroad Comm., 269 U.S. 354, 357 , 46 S.Ct. 149. This is not a case where, as in Saunders v. Shaw, 244 U.S. 317, 320 , 37 S.Ct. 638, the federal claim arose from the unanticipated disposition of the case at the close of the proceedings in the state Supreme Court. Compare Ohio ex rel. Bryant v. Akron Metropolitan Park Dist., 281 U.S. 74, 79 , 50 S.Ct. 228, 66 A.L.R. 1460. Nor is the federal claim based, as in Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 678 , 50 S.Ct. 451, upon the unanticipated act of the state Supreme Court in giving to a statute a new construction which threatened rights under the Constitution. Compare Missouri ex rel. Missouri Insurance Co. v. Gehner, 281 U.S. 313, 320 , 50 S. Ct. 326.

Second. In No. 21, the Circuit Court of Appeals should have affirmed the decree of the federal court for Idaho which denied the surety company’s application for an interlocutory injunction and dismissed the bill. For the federal remedy was barred by the proceedings taken in the state court which ripened into a final judgment constituting res judicata.

The surety company was at liberty to resort to the federal court regardless of citizenship, because entry of the judgment without notice, unless authorized by it, violated the due process clause of the Fourteenth Amendment. Compare National Exchange Bank v. Wiley, 195 U.S. 257 , 25 S.Ct. 70; Cooper v. Newell, 173 U.S. 555 , 19 S.Ct. 506. And it was at liberty to invoke the federal remedy without first pursuing that provided by state procedure. Simon v. Southern Ry., 236 U.S. 115 , 35 S.Ct. 255; Atchison, Topeka & Santa [287 U.S. 156, 165]   Fe Ry. Co. v. Wells, 265 U.S. 101 , 44 S.Ct. 469; Firestone Tire & Rubber Co. v. Marlboro Cotton Mills (C.C.A.) 282 F. 811, 814. But an adequate state remedy was available; and, having invoked that and pursued it to final judgment, the surety company cannot escape the effect of the adjudication there. Compare Mitchell v. First National Bank, 180 U.S. 471 , 480-481, 21 S.Ct. 418; Lion Bonding Co. v. Karatz, 262 U.S. 77, 90 , 43 S.Ct. 480.

The Supreme Court of Idaho had jurisdiction over the parties and of the subject-matter in order to determine whether the trial court had jurisdiction. Clearly, the motion to vacate, made on a general appearance, and the appeal from the order thereon, were no less effective to confer jurisdiction for that purpose than were the special appearance and motion to quash and dismiss held sufficient in Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522 , 51 S.Ct. 517; And there was an actual adjudication in the state court of the question of the jurisdiction of the trial court to enter judgment. The scope of the issues presented involved an adjudication of that issue. Compare Napa Valley Elec. Co. v. Railroad Comm., 251 U.S. 366 , 40 S.Ct. 174; Grubb v. Public Utilities Comm., 281 U.S. 470 , 477-478, 50 S.Ct. 374. The Supreme Court of Idaho did not refuse to adjudicate that question when it declined to ‘construe the legal effect of the undertaking in question further than to examine it in aid of determining the sole question of the court’s jurisdiction to hear and determine the motion for judgment thereon.’ It narrowed the issue, according to the state procedure, by separating, in effect, the question of jurisdiction from that of liability. It held that the status of the surety company as a party to the litigation, by virtue of its execution of the bond in the cause, necessarily persisted, although its liability may have been limited by the terms of the bond. With the soundness of the decision we are not here concerned. It is enough that the court did not, as the surety com- [287 U.S. 156, 166]   pany asserts, reach its decision by merely assuming the point in issue, or by deeming itself concluded by the fact that the trial court took jurisdiction. That it did not so reach its decision is made clear by the opinion itself. We are thus brought to a consideration of the effect on the present suit of the judgment of the Supreme Court of Idaho.

The full faith and credit clause, Const. art. 4, 1, together with the legislation pursuant thereto, applies to judicial proceedings of a state court drawn in question in an independent proceeding in the federal courts. Act of May 26, 1790, c. 11; Act of March 27, 1804, c. 56, 2; Rev. Stat. 905 (28 USCA 687); Mills v. Duryee, 7 Cranch, 481, 485; Mutual L. Insurance Co. v. Harris, 97 U.S. 331 , 336. Compare Bradford Electric Light Co. v. Clapper, 286 U.S. 145, 155 , 52 S.Ct. 571. The principles of res judicata apply to questions of jurisdiction as well as to other issues. Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522 , 51 S.Ct. 517. They are given effect even where the proceeding in the federal court is to enjoin the enforcement of a state judgment, if the issue was made and open to litigation in the original action, or was determined in an independent proceeding in the state courts. See Marshall v. Holmes, 141 U.S. 589, 596 , 12 S.Ct. 62; Fidelity & Deposit Co. of Maryland v. Gaston, Williams & Wigmore (D.C.) 13 F.(2d) 267, affirmed per curiam, (C.C.A.) 13 F.(2d) 268.4 The principles of res judicata may apply, although the proceeding was begun by motion. Thus, a decision in a proceeding begun by motion to set aside a judgment for want of jurisdiction is, under Idaho law, res judicata, and precludes a suit to enjoin enforcement of the judgment. Bernhard v. Idaho Bank & Trust Co., 21 Idaho, 598, 123 P. 481, Ann. Cas. 1913E, 120.5 Since the deci- [287 U.S. 156, 167]   sion would formally constitute res judicata in the courts of the state, since it in fact satisfies the requirements of prior adjudication, and since the constitutional issue as to jurisdiction might have been presented to the state Supreme Court and reviewed here, the decision is a bar to the present suit in so far as it seeks to enjoin the enforcement of the judgment for want of jurisdiction. Compare Fidelity Natl. Bank & Trust Co. v. Swope, 274 U.S. 123 , 130-131, 47 S.Ct. 511. [287 U.S. 156, 168]   Third. The surety company contends in No. 21 that, even if the trial court of the state had jurisdiction, the federal District Court may enjoin the enforcement of the judgment on the ground that, having been entered without notice and an opportunity for a hearing on the construction of the bond, it lacked due process of law. It is true that entry of judgment without notice may be a denial of due process even where there is jurisdiction over the person and subject-matter. But that rule is not applicable here; for, if the bond properly construed stayed the judgment as against Anderson, the surety company consented to the entry of judgment against it without notice for his failure to pay. If the bond did not stay the judgment as against Anderson, the trial court confessedly erred in entering the judgment on the bond. In order to contest its liability, the surety company had the constitutional right to be heard at some time on the construction of the bond. The state practice provided the opportunity for such a hearing by an appeal after the entry of judgment.

The practice prescribed was constitutional. Due process requires that there be an opportunity to present every available defense; but it need not be before the entry of judgment. York v. Texas, 137 U.S. 15 , 11 S.Ct. 9. Compare Grant Timber & Manufacturing Co. v. Gray, 236 U.S. 133 , 35 S.Ct. 279, Bianchi v. Morales, 262 U.S. 170 , 43 S.Ct. 526. See, also, Phillips v. Commissioner, 283 U.S. 589 , 596- 597, 51 S.Ct. 608; Coffin Brothers & Co. v. Bennett, 277 U.S. 29 , 48 S.Ct. 422. An appeal on the record which included the bond afforded an adequate opportunity. Thus the entry of judgment was consistent with due process of law. We need not inquire whether its validity may not rest also on the ground that the surety company, by giving the bond, must be taken to have consented to the state procedure. Compare United Surety Co. v. American Fruit Product Co., 238 U.S. 140, 142 , 35 S.Ct. 828, Corn Exchange Bank v. Commissioner, 280 U.S. 218, 223 , 50 S.Ct. 94. The opportunity afforded by [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. 

In No. 3, writ of certiorari dismissed.

In No. 21, decree reversed.