CHARLES A. DAVIS, CONSUL GENERAL OF THE KING OF SAXONY, PLAINTIFF IN ERROR
v.
ISAAC PACKARD, HENRY DISDIER AND WILLIAM MORPHY, DEFENDANTS IN ERROR.
Supreme Court of United States.
*43 Mr J.M. White, with whom was Mr A.S. Garr, for the plaintiff in error.
*47 Mr Justice THOMPSON delivered the opinion of the Court.
This case comes up on a writ of error to the court for the correction of error in the state of New York, being the highest court of law in that state in which a decision in this suit could be had. And a motion has been here made to dismiss the writ of error for want of jurisdiction in this court.
From the record returned to this court, it appears, that the cause went up to the court for the correction of errors in New York upon a writ of error to the supreme court of that state; and that in the court of errors, the plaintiff assigned as error in fact, that he Charles A. Davis, before and at the time of the commencement of the suit against him, was, and ever since hath continued to be, and yet is consul general in the United States of his majesty, the king of Saxony, duly admitted and proved as such by the president of the United States. And being such consul, he ought not, according to the constitution and laws of the United States, to have been impleaded in the said supreme court, but in the district court of the United States for the southern district of New York, or in some other district court of the said United States, and that the said supreme court had not jurisdiction, and ought not to have taken to itself the cognizance of the said cause. To this assignment of errors, the defendants in error answered, that there is no error in the record and proceedings aforesaid, nor in giving the judgment aforesaid, because they say, that it no *48 where appears by the said record, proceedings, or judgment, that the said Charles A. Davis ever was consul of the king of Saxony, and they pray that the said court for the correction of errors may proceed to examine the record and proceedings aforesaid, and the matter, aforesaid, above assigned for error, and that the judgment aforesaid may be in all things affirmed.
The record then states: whereupon the court for the correction of errors, after having heard the counsel for both parties, and diligently examined, and fully understood, the causes assigned for error, and inspected the record and process aforesaid, did order and adjudge that the judgment of the supreme court be in all things affirmed.
The motion made in this court to dismiss the writ of error is founded and resisted upon affidavits, on each side, disclosing what took place in the court of errors in New York, on a motion there made to dismiss the writ of error to the supreme court of that state: and the opinion of the chancellor delivered in the court of errors, assigning his reasons for affirming the judgment of the supreme court, has also been laid before us.
We cannot enter into an examination of that question at all: whatever took place in the state court which forms no part of the record sent up to this court, must be entirely laid out of view. This is the established course of this court: and neither the opinion of the chancellor, or the proceedings on the motion, forms a part of the record. 12 Wheat. 118. The question before this court is, whether the judgment was correct, not the ground on which that judgment was given. 6 Wheat. 603.
It has also been settled, that in order to give jurisdiction to this court under the twenty-fifth section of the judiciary act, (2d vol. L.U.S. 65) it is not necessary that the record should state in terms, that an act of congress was in point of fact drawn in question. It is sufficient, if it appears from the record that an act of congress was applicable to the case, and was misconstrued, or the decision in the state court was against the privilege or exemption specially set up under such statute. 4 Wheat. 311; 2 Peters, 250; 3 Id. 301; 4 Id. 429. How stands the record, then, in this case? Charles A. Davis alleges, that he is consul general of the king of Saxony in the United States, and that he is thereby privileged from being *49 sued in the state court, according to the constitution and laws of the United States. The fact of his being such consul is not denied by the joinder in error. The answer given is, that it no where appears by the record, proceedings, or judgment of the supreme court, that the said Davis was such consul; and the court of errors, in giving judgment, say; after having examined and fully understood the causes assigned for error, they affirm the judgment of the supreme court. This was deciding against the privilege set up under the act of congress, which declares that the district court of the United States shall have jurisdiction, exclusively of the courts of the several states, of all suits against consuls and vice consuls. 2d vol. L.U.S. 60, sec. 9.
The question before this court is not whether the judgment of the supreme court in New York was correct. It is the judgment of the court for the correction of errors, that is to be reviewed here. That is, the final judgment in the highest court in the state, and none other can be brought into this court, under the twenty-fifth section of the judiciary act.
Whether it was competent for Davis in the court of errors to assign, as error in fact, his exemption from being sued in a state court, is not a question presented by the record. No such question appears to have been raised or decided by the court. And, judging from the ordinary course of judicial proceedings in such cases, we are warranted in inferring that no such question could have been made. For if the court of errors had entertained the opinion that such exemption could not be assigned for error in that court, the writ of error would probably have been dismissed. Or, if the court had understood, that the fact of his being consul was denied, an issue would probably have been directed to try that fact, under a provision in a statute of that state, which declares, "that whenever an issue of fact shall be joined upon any writ of error, returned into the court for the correction of errors, and whenever any question of fact shall arise upon any motion in relation to such writ, or the proceedings thereon, the court may remit the record to the supreme court with directions to cause an issue to be made up by the parties, to try such question of fact at the proper circuit court or sittings, and to certify *50 the verdict thereupon to the said court for the correction of errors." 2d vol. Rev. Stat. New York, 601.
From the record, then, we are necessarily left to conclude, that the state court, assuming or admitting the fact, that Davis was consul general as alleged in his assignment of errors, yet it did not exempt him from being sued in a state court; which brings the case within the twenty-fifth section of the judiciary act; the decision having been against the exemption set up and claimed under a statute of the United States.
The motion to dismiss the writ of error is accordingly denied.
On consideration of the motion made in this cause by Mr Sedgwick, of counsel for the defendants in error, at the last January term of this court, to wit, on Saturday the 5th day of February A.D. 1831, to dismiss the writ of error in this cause for the want of jurisdiction, and of the arguments of counsel thereupon had; it is now here considered and ordered by this court, that the said motion be and the same is hereby denied and overruled.