
    CASE 81. — ACTION BY PETER McCABE’S ADMINISTRATRIX AGAINST THE MAYSVILLE & BIG SANDY RAILROAD COMPANY AND OTHERS —
    February 10, 1910.
    McCabe’s Admx v. Maysville & Big Sandy Ry. Co.
    Appeal from Mason Circuit Court.
    O. W. Newell, Circuit Judge.
    Prom an order sustaining a demurrer to the reply, plaintiff appeals. —
    Affirmed.
    1. Judgment — Judgment of United States Court — Effect in. State Court. — Where the federal circuit court assumed jurisdiction of a-case removed from a state court, and dismissed the action on plaintiff’s default, from which judgmeni no appeal was taken, such judgment was conclusive of the question whether the cause was removable, though plaintiff during the pendency of the action in the federal court prosecuted an appeal to the state Court of Appeals, and secured a reversal of the order of the trial court removing the case to the federal court, and plaintiff could not, after the judgment of the Court of Appeals was reversed by the United States Supreme Court, and the cause remanded to the state trial court, interpose a demurrer to an answer then filed by defendant, pleading the judgment of the federal circuit court in bar of the further prosecution of the suit on the ground that the federal removal act was unconstitutional, since the question raised by such demurrer should have been interposed either in the state court when the motion to remove was made or in the federal circuit court at the time it assumed jurisdiction.
    2. Constitutional Law — Statute—Necessity of Pleading Invalidity. — If a defense is based upon a statute, it is not necessary that it be specifically raised by pleading if the court’s attention is directed to the fact that its validity is questioned, and the determination of the question is necessary to the decision of the case.
    
      3. Judgment — Judgment of United States Court — Effect in State Court — Matters Concluded — Questions Necessarily Decided. — ' A decision of the United States Supreme Court that a federal circuit court had acquired jurisdiction when judgment was rendered in the state court, and that the circuit court’s 0 judgment was conclusive until reversed, necessarily decided that the statute under which the cause was removed to the federal court was valid, where its alleged invalidity was called to its attention though it was not pleaded, so that its validity cannot be raised on remand to the state court for retrial.
    ALLAN D. COLE for appellant.
    WORTHINGTON, COCHRAN & BROWNING for appellees.
   Opinion op the Court by

Judge Carroll —

Affirming.

This case has heretofore been three times in this court on as many appeals, 112 Ky. 861, 66 S. W. 1054, 23 Ky. Law Rep. 2328; 89 S. W. 683, 28 Ky. Law Rep. 536; 100 S. W. 219, 30 Ky. Law Rep. 1009; and once in the Supreme Court of the United States, 213 U. S. 207, 29 Sup. Ct. 430, 53 L. Ed. 765.

On the last appeal to this court, we affirmed a judgment rendered in the Mason circuit court in favor of appellant for $2,500. From the judgmént of this court an appeal was prosecuted by the appellees to the United States Supreme Court. That court reversed us upon the ground that' the Mason circuit court at the time the trial was had and the judgment rendered was without jurisdiction to hear or dispose of the case for the following reasons: When the suit was first brought in the Mason circuit court, that court upon motion of appellees-entered an order removing it to the federal court. From! this order the appellant prosecuted an appeal to this court. Pending the appeal from the order of removal the appellees filed a transcript of the record in the Circuit Court of the United States for the Eastern District of Kentucky, and the case was duly docketed. After this court had reversed the order of the Mason circuit court removing the case to the federal court the appellant filed in the federal court a motion to remand the case to the state court, which motion was overruled. Thereupon the appellees filed an answer in the federal court, and on their motion the case was set for trial and a judgment by default entered dismissing the appellant’s petition. Afterwards, when the case came on for trial in the Mason circuit court, the appellees offered an answer which set up all the proceedings taken and had in the federal court. The motion to file this answer was denied, but it was made a part of the record. Thereupon the trial proceeded in the state court with the final result that a judgment was obtained for the amount before stated.

On the appeal to the Supreme Court of the United States from this court that court held that the judgment of the federal court, dismissing the case after refusing to remand it to the state court, was a bar to a further prosecution of the action in the state court as the judgment of the federal court stood unreversed and unmodified, the court saying: “It is not necessary to determine whether the case was removable or not. The federal court was given jurisdiction to determine that question; it did determine it, and its judgment was conclusive upon the parties before it until reversed by proper proceedings in this court. Instead of bringing the case here, the plaintiff proceeded in the state court, and that court denied effect to the federal judgment. The plaintiff in error lost no right when thus compelled to remain in the state court, notwithstanding the federal judgment in its favor and brought the suit here by writ of error to the final judgment of the state court, denying its right secured by the federal judgment. It was open to the plaintiff to bring the adverse decision of the federal court on the question of jurisdiction to this court for review. This course was not pursued, but the action proceeded in the state courts evidently upon the theory that the judgment of the federal court was a nullity if it had erred in taking jurisdiction. For the reasons stated we think this hypothesis is not maintainable.”

When the mandate of the Supreme' Court of the United States was filed in this court we set aside the former judgment affirming the Mason circuit court and issued a mandate directing the Mason circuit court to set aside the judgment appealed from and proceed in accordance with the opinion of the Supreme Court of the United States. Thereupon the Mason circuit court, pursuant to the mandate, set aside its former judgment and its order refusing to allow to be filed the answer theretofore tendered, pleading in bar the judgment of the United States Circuit Court, and entered an order filing the same. Appellant then filed a general demurrer to the answer, which the court overruled, following - it by a reply to which a demurrer was sustained. It is from the order sustaining a demurrer to the reply that this apjDeal is prosecuted. The material part of the reply, and the only part we are concerned with, assails the constitutionality of the Removal Act (Act March 3, 1875, c. 137, 18 Stat. 470, as amended by Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 507]) in the following terms: “Plaintiff therefore states that sections 3 and 5 of the act of Congress known as the removal act, and any other such, parts thereof as undertake to confer or did undertake to confer upon the United States Circuit 'Court for the Eastern District of Kentucky the right of jurisdiction to hear and determine the controversy herein, which is not and never has been a controversy wholly between citizens of different states, are.in conflict with article 3, section 2, of the United States Constitution and the 9th and 10th amendments thereto. Plaintiff therefore states that said act of Congress in so far as it was intended to apply to controversies not wholly between citizens of different states is unconstitutional, null and void, and she pleads and relies upon such provisions of the federal Cohstitution in estoppel of defendant’s plea in bar of the jurisdiction of this court and its right to proceed in this case.”

It seems to us that this attack on the validity of this statute comes too late. If, as argued by counsel, it was necessary to raise the question of its validity by a pleading, then it should have been made by appropriate pleading hi the state court when the motion to remove to the federal court was made, or it should have been made in the federal court when the case was there pending. If we should now hold that the'reply presented a good defense, it would be m effect ruling that the United States statute under consideration was violative of the federal Constitution and hence void. The further effect of this would be to vacate not only the judgment of the Supreme Court of the United States but the mandate of this court issued in pursuance thereof, and to open up the ease for a new trial in the state court as if no judgment had ever been rendered. Neither of these things are we prepared to do. But, aside from this, we are unable to agree with counsel that it is necessary to raise by pleading tbe question that a statute upon which a right or remedy is rested is unconstitutional. In our opinion, when a cause of action or defense is based on a statute, it is not necessary {hat the validity of the statute should be attacked in a pleading setting forth specifically its invalidity. If fhe attention of the court is directed to the fact that the validity of the statute is drawn in question, and the determination of its validity is necessary to a correct decision of the case, it will take judicial notice of the legal question presented. In such a case, if the right of action or defense depended on the validity of the statute, the court would necessarily be obliged to uphold the statute if it sustained the pina rested upon it. As the question was called to the attention of the Supreme Court of the United States, we cannot escape the conviction that the val - idity of the statute must have been considered by that court. The question decided by that court "was that, as the federal court had assumed jurisdiction, its judgment was conclusive of this question.' To reach this conclusion the Supreme Court of the* United States must first have determined that the act conferring jurisdiction upon the federal court was valid. If the act under which the federal court acted, and by virtue of which it assumed jurisdiction, was unconstitutional, it seems manifest that the decision of the federal court taking jurisdiction under this act could not stand. It is true that the Supreme Court of the United States does not in the opinion discuss the validity of this act, but it does not follow from this fact that its validity was not. considered by the court. It not infrequently happens that questions that are esteemed important by counsel are not aljuded to in the opinion. Looking at the matter from either of the view points in which it presents itself, we are of the opinion that the validity of the statute in this particular case is a closed incident.

Wherefore the judgment is affirmed.  