supreme court under such regulations as may be prescribed by law, but in no case removed to the supreme court shall trial by jury be allowed in said court. Writs of error and appeals from the final decisions of said supreme court shall be allowed and may be taken to the Supreme Court of the United States in the same manner and under the same regulations as from the Circuit Courts of the United States, where the value of the property or the amount in controversy, to be ascertained by oath or affirmation of either party or other competent witness shall exceed five thousand dollars;

So far as review by this court is concerned, this is the usual provision, and is limited to civil cases. We are then brought to inquire whether any other statute may be invoked to sustain our jurisdiction.

Section 5 of the judiciary act of March 3, 1891, 26 Stat. 827, c. 517, provided that appeals or writs of error might be taken from the District and Circuit Courts directly to this court in certain enumerated classes of cases, among which were "cases of conviction of a capital or otherwise infamous crime." By amendment the words "or otherwise infamous" were stricken out, and it was declared that cases of convictions for an infamous crime not capital might be carried to the Circuit Courts of Appeals. 29 Stat. 492, c. 68.

By section 6, the judgments of the Circuit Courts of Appeals are made final in cases arising under the criminal laws. And section 15 provides: "That the Circuit Court of Appeals in cases in which the judgments of the Circuit Courts of Appeal are made final by this act shall have the same appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the Supreme Courts of the several Territories as by this act they may have to review the judgments, orders, and decrees of the District Court and Circuit Courts; and for that purpose the several Territories shall, by orders of the Supreme Court, to be made from time to time, be assigned to particular circuits."

But the case before us is a capital case and not included in

the criminal cases to which the jurisdiction of the Circuit Courts of Appeals extends. It is suggested that, as it follows that if this court has no jurisdiction, convictions for crimes not capital are reviewable on a second appeal, while convictions for a capital crime are not, this involves an absurdity, hardship or injustice, presumably not intended. We held, however, in Folsom v. United States, 160 U. S. 121, that the intention was plain and that the statute must be taken as it read.

There remains the act of February 6, 1889, 25 Stat. 655, e. 113, by the sixth section of which it was provided that "in all cases of conviction of crime, the punishment of which provided by law is death, tried before any court of the United States, the final judgment of such court against the respondent shall, upon the application of the respondent, be reëxamined, reversed, or affirmed by the Supreme Court of the United States upon a writ of error." As to this, however, it was ruled in Cross v. United States, 145 U. S. 571, that, in view of the terms of the whole section, the allowance of a writ of error to any appellate tribunal was not contemplated, but merely to review the judgment of the trial court.

It is thus seen that there is no statute giving appellate jurisdiction to this court over the judgments of the Supreme Court of Oklahoma in capital cases.

Peference is made to Queenan v. Oklahoma, 190 U. S. 548, in which we entertained jurisdiction in the absence of any suggestion as to the want of it. United States v. Simms, 1 Cranch, 252, is an instance of similar inadvertance, and when cited in United States v. More, 3 Cranch, 159, 172, Chief Justice Marshall disposed of it in these words: "No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case."

Writ of error dismissed.

195 U.S.

Argument for Plaintiff in Error.

NATIONAL EXCHANGE BANK OF TIFFIN v. WILEY.

IN ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

No. 53. Argued November 7, 1904.-Decided November 28, 1904.

A warrant of attorney executed by the maker of a note and authorizing, in case of nonpayment, an attorney to appear, waive process, confess judgment, waive error and right of appeal in favor of the "holder" of the note must be construed strictly in favor of the maker, and does not, in the absence of express terms, authorize the confession of judgment in favor of the original payee after it ceases to be the owner of the note even though he may have the note in his possession. A judgment so entered would be a personal judgment without service of process or appearance, and the court would have no authority or jurisdiction to enter it, and the proceedings would be wanting in due process of law. Such a judgment can be attacked collaterally without violating the full faith and credit clause of the Federal Constitution in an action thereon in a State, other than that in which it was entered, on the ground that the party in whose favor it was rendered was not in fact the holder because not the owner of the note and that, therefore, the court entering the judgment was without jurisdiction.

THE facts are stated in the opinion.

Mr. John J. Boucher, with whom Mr. Constantine J. Smyth and Mr. Thomas D. Crane were on the brief, for plaintiff in

error:

The answer does not state a defense to the petition but confesses same; it admits delivery of the note and warrant of attorney authorizing any attorney to appear without process and confess judgment and that the judgment was so confessed in a court of general jurisdiction. The judgment of a court of general jurisdiction in any State is equally conclusive upon the parties in any other State. Tell v. Yost, 128 N. Y. 387; Shumway v. Stillman, 6 Wend. 453. In any view of the case there is no evidence in support of the defendant's contention that the bank was not the holder of the note in the Ohio court.

VOL. CXCV-17

Argument for Defendant in Error.

195 U. S.

Under the full faith and credit clause of the Constitution the Ohio judgment is conclusive that plaintiff was the holder of the note. Richtmeyer v. Remsen, 38 N. Y. 206; Reed v. Spoon, 66 N. Car. 415; Fisher v. Williams, 57 Vermont, 586. Whether or not the plaintiff was the holder of the note is not a jurisdictional, but a quasi-jurisdictional question and the judgment of the Ohio court is conclusive and cannot be controverted in collateral proceedings. 12 Ency. Pl. & Pr. 211; Reinach v. Atlantic &c. R. Co., 58 Fed. Rep. 43; Betts v. Bagley, 12 Pick. (Mass.) 572; Holcomb v. Phelps, 16 Connecticut, 132; Wright v. Douglas, 10 Barb. 97; Ex parte Stearnes, 77 California, 156; Bostwick v. Skinner, 80 Illinois, 153; Wing v. Dodge, 80 Illinois, 564; Young v. Lorain, 11 Illinois, 624; Simmons v. Saul, 138 U. S. 439; Comstock v. Crawford, 3 Wall. 396, 403; Lafayette Ins. Co. v. French, 18 How. 404. This judgment has the same force and effect as a judgment in adversary proceedings. Snyder v. Critchfield, 44 Nebraska, 66. The defendant waived any defect of parties. If there was any such defect it appeared on the face of the petition and should have been demurred to. 6 Ency. Pl. & Pr. 375; Beeler v. Larned, 34 Nebraska, 348; Castile v. Ford, 53 Nebraska, 507.

Mr. James H. McIntosh for defendant in error:

The answer is a sufficient defense. Plaintiff was not the holder of the note and the attorney was not the agent for the maker of the note. Notwithstanding the full faith and credit clause of the Constitution it can always be ascertained in collateral proceedings if the court entering the judgment had jurisdiction to enter it. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas Light Co., 19 Wall. 58; Hall v. Lanning, 91 U. S. 160; Pennoyer v. Neff, 95 U. S. 714; Cole v. Cunningham, 133 U. S. 107; Simmons v. Saul, 138 U. S. 439; Thormann v. Frame, 176 U. S. 356; Bell v. Bell, 181 U. S. 175.

The warrant of attorney was confined to entering the judgment in favor of the holder of this instrument. Such a war

rant must be strictly construed. Spence v. Emerine, 46 Ohio, 433, and cases cited; Cahn v. Lessor, 72 N. W. Rep. 739; Morris v. Bank, 67 Texas, 602; Bank v. St. John's, 5 Hill, 497. As to who is the holder of a note, see 1 Randolph on Com'l Paper, 14 and note.

As to what are jurisdictional questions, see Pennoyer v. Neff, 95 U. S. 714; Griffith v. Frazier, 8 Cranch, 9; Wise v. Withers, 3 Cranch, 331; Rose v. Himely, 4 Cranch, 214; Galbin v. Pays, 18 Wall. 350; Clark v. Clark, 178 U. S. 186; as to what are quasi-jurisdictional questions, see Des Moines v. Iowa, 123 U. S. 552; Mickel v. Post, 21 Wall. 398; Comstock v. Crawford, 3 Wall. 398; Thompson v. Tolme, 2 Peters, 157; Reinach v. Atl. &c. R. Co., 43 Fed. Rep. 83; Betts v. Bagley, 12 Pick. 572; Holcombe v. Phelps, 16 Connecticut, 132; Wright v. Douglas, 10 Barb. 97; Simmons v. Saul, 138 U. S. 439.

Even if the court erred in its instructions the error was without prejudice; for if the plaintiff's judgment was valid, it was a joint judgment against Wiley and Wiley Construction Company and suit could not be maintained against Wiley alone. A joint judgment cannot be made the basis of a separate suit against one of the judgment debtors. First National Bank v. Hamor, 63 Fed. Rep. 36; Watson v. Steineu, 33 Atl. Rep. 4 (R. I.); Knapp v. Abell, 10 Allen, 485; Mann v. Edward, 138 Illinois, 19; Smith v. Smith, 17 Illinois, 481; Donnelly v. Graham, 77 Pa. St. 274; Holbrook v. Murray, 5 Wend. 161; Dark v. Goss, 24 Michigan, 265; Sheehan v. Sims, 28 Mo. App. 64; Lawrence v. Willoughby, 1 Minnesota, 65.

MR. JUSTICE HARLAN delivered the opinion of the court.

This is an action upon a judgment rendered in one of the courts of Ohio, and the question to be considered is whether the final judgment under review gave to the proceedings in the Ohio court such faith and credit as are required by the Constitution and laws of the United States.

The Constitution, Art. IV, § 1, provides that "Full faith