and next of kin, being citizens of the State of Iowa, instituted this suit in the Circuit Court of the United States, making defendants substantially all the parties to the suit in the state court, the one or two omissions in no way affecting the question before us. Subsequently the remaining executor, one having resigned, of the will of Mrs. Fayerweather filed a cross bill, the allegations and the relief asked being similar to those in the original bill.

These bills-in addition to setting forth the will and codicils executed by Mr. Fayerweather, the probate proceedings and the releases by the widow and nieces, and alleging that these letters were fraudulently obtained and not binding-averred the bringing of the suit hereinbefore referred to in the Supreme Court of the State by the five colleges, annexing copies of the pleadings, and alleged that "thereupon the issues so joined, as well as others duly raised by the answers of the several defendants, came on to be tried before said court, and these complainants gave evidence tending to prove the allegations in their said answer and all of said allegations, and thereupon it became and was the duty of said court to adjudge and determine whether the releases therein described were invalid, and whether these complainants were entitled to the affirmative relief prayed in respect thereto;" and further, that the defendants

"Confederating and combining together and between themselves to prevent the entry of any judgment upon an actual determination of the invalidity of said releases so in issue, requested and induced the court to hold and decide that the right of the respective parties to said property and residuary estate did not require any consideration or decision of said issues, and said court thereupon made and rendered its decision without considering, passing upon or including in judgment the said issues, and omitted to decide upon these complainants' right to the affirmative relief by said answer prayed in respect to said releases.

"And thereupon there was filed and entered in said action

a decision and judgment, a copy of which is hereto annexed, which complainants pray may be referred to and taken as part of this bill as if the same were herein set forth at length.

"Thereupon by appeals taken from said judgment, in which appeals these complainants were respondents as well as appellants, said judgment was reviewed by the general term of said Supreme Court, sitting as a court for the correction of errors, and not exercising any original jurisdiction, and thereupon said court held and determined that the right of the respective parties to said property and residuary estate did require the consideration and decision of said issues, and thereupon, being duly informed by the record that said issues had not been in fact considered, passed upon or included in said judgment, it became and was the duty of said court, pursuant to due process of law, the law of the land and the provisions of the Constitutions of the State of New York and of the United States, to require and order that said issues should be in fact considered, passed upon and included in judgment by the trial court, and until that should be done said court could not duly adjudge or determine whether any error had been committed in such determination upon said issues.

"Nevertheless said court at said general term did not so require or order, but by various fictions of law imputed to said trial term and court below that it had determined said issues and had decided in favor of the plaintiffs in said action upon such determination, contrary to the truth and fact, and thereupon pretended to adjudge and determine, as such court for the correction of errors, that there was not sufficient preponderance of evidence to support the asserted invalidity of said releases to render such imputed determination of said trial court erroneous as matter of law, but that such imputed determination was supported by evidence sufficient to relieve the same from the assignment of error in so deciding.

"It was not competent for said general term to have exercised an original jurisdiction and to have adjudged said issues,

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Statement of the Case.

and thereupon to have modified said judgment so as to include the actual determination thereof; and said general term did not exercise such power, but confined its action wholly to the consideration of errors in the record.

"Thereupon said judgment was by appeals taken from the judgment of affirmance so rendered, in which appeals these complainants were respondents as well as appellants, and reviewed by the Court of Appeals of the State of New York.

"Said court determined that these complainants had no standing to be heard or to have their rights determined by said Court of Appeals, because the limitations imposed by statute upon the jurisdiction of said court precluded any inquiry into the facts, the proof of the merits of the said issues, but that said court was bound by the formal record procured as aforesaid, and by the fictions thereby adjudged as aforesaid, and had no power to review the same.

"During the pendency of the appeals aforesaid the control of the several courts below over said action and the trial thereof and the correction of any injustice arising as aforesaid was suspended, and upon the affirmance of said judgment of affirmance, by the statutes of the State of New York, any correction of the injustice arising as aforesaid was placed beyond the power of any court of said State, except as the Court of Appeals should, by its remittitur, confer power upon said subordinate courts to entertain and try the said issues.

"Thereupon these complainants duly made application to said Court of Appeals so to frame its said remittitur as to permit said subordinate courts to entertain and try the said issues, which application said court denied."

To these bills the defendants filed pleas of res judicata, claiming that the controversy between the parties was finally settled by the decision of the state court. These pleas were accompanied by an answer denying the allegations of fraud. The Circuit Court sustained the pleas and dismissed the bill and cross bill on the ground that the cause of action set forth

Argument for Appellants.

195 U. S.

in them was barred by the prior judgment of the state court. From this decree of dismissal the plaintiffs appealed directly to this court.

Mr. Roger M. Sherman for appellant in No. 157 and Mr. William Blaikie for appellant in No. 158. Mr. Charles Andrews submitted a brief for appellants in Nos. 157 and 158.

This court has juridsiction on direct appeal. The appellants have not had due process of law. United States v. Throckmorton, 98 U. S. 61; Hovey v. Elliott, 167 U. S. 446. The question of whether the releases were fraudulent was never considered by the trial judge in the state court. A question not considered is not settled by the decision. Hagar v. Reclamation District, 111 U. S. 708; State v. Rusk, 23 Wisconsin, 643; Starr v. Stark, 2 Sawyer, 641.

Fundamental rights cannot be taken away without due process of law. Barney v. New York, distinguished, and see Holden v. Hardy, 169 U. S. 389; Logan v. United States, 144 U. S. 288; Caldwell v. Texas, 137 U. S. 697; Hurtado v. California, 110 U. S. 535; Campbell v. Evans, 45 N. Y. 358; Taylor v. Porter, 4 Hill, 140; Wynehawer v. People, 31 Connecticut, 328; People v. O'Brien et al., 111 N. Y. 38; Dash v. Van Vleeck, 7 Johns. 427; Monongahela Navigation Co. v. United States, 148 U. S. 325; Boyd v. United States, 116 U. S. 635; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 695; Walker v. Sauvinet, 92 U. S. 92; Allen v. Georgia, 166 U. S. 140; Mo. Pac. Ry. v. Nebraska, 164 U. S. 417; C., B. & Q. R. R. v. Chicago, 166 U. S. 231; Scott v. McNeal, 154 U. S. 34; Davidson v. New Orleans, 96 U. S. 97.

There are private rights beyond the control of the State in every free government. Loan Assn. v. Topeka, 20 Wall. 603. A State has control of the procedure in its courts but cannot deprive citizens of fundamental rights. Brown v. New Jersey, 175 U. S. 175; Bertholf v. O'Reilly, 74 N. Y. 515: West v. Louisiana, 194 U. S. 258. The cases must be disposed of

195 U.S.

Argument for Appellants.

according to law. The Circuit Court was free to decide this case upon the merits according to its own convictions. Comity deserves respect but it is not law. Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 489. The interlocutory decision of the Circuit Court of Appeals reversing the injunction order was not final and has not the weight of a decision of the case and is not res judicata or controlling at final judgment. Keystone Iron Co. v. Martin, 132 U. S. 93; 1 Freeman on Judgments, 4th ed., § 251; Pothier on Obligations, Pt. 4, c. 3, §3, art. 1; Webb v. Buckalew, 82 N. Y. 559; Snow v. Sargent, 106 Fed. Rep. 232; High on Injunctions, 3d ed., §5; Andred v. Redfield, 12 Blatchf. 425; California Fig Syrup Co. v. Putnam, 66 Fed. Rep. 754; McLure v. Sherman, 70 Fed. Rep, 90.

The Circuit Court of Appeals has never passed on the questions of res judicata and due process of law now before this court. The decision in Trustees of Amherst College v. Ritch is not res judicata. The record shows that Judge Truax who tried the case in the first instance did not consider the question of the validity of the releases, but decided that the releasors had nothing to release. The question here is the validity of the releases-hence the state court decision is not res judicata. Casparsz on Estoppel, 342; Fifield v. Edwards, 39 Michigan, 264; State v. Rusk, 23 Wisconsin, 643; Russell v. Place, 94 U. S. 608; Packing Co. v. Sickles, 5 Wall. 580; Lantern v. Meyrose, 27 Fed. Rep. 213; Hooker v. Hubbard, 102 Massachusetts, 245; Aiken v. Peck, 22 Vermont, 260.

As the state court judgment was not responsive to the issues of the complaint it is upon that ground not a bar. Arnold v. Angell, 62 N. Y. 511; Romeyn v. Sickles, 108 N. Y. 652; Day v. New Lots, 107 N. Y. 148; Southwick v. Bank, 61 How. Pr. 170; Neudecker v. Kohlberg, 81 N. Y. 301; Stevens v. Mayor, 84 N. Y. 305; Bradley v. Aldrich, 40 N. Y. 504; Graham v. Read, 57 N. Y. 683; Reynolds v. Stockton, 140 U. S. 254; Crockett v. Lee, 7 Wheat, 525,

VOL. CXCV-19