MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.
Motion is made to dismiss this writ of error upon two grounds, (1) That the supposed Federal question was not set up and claimed until too late. (2) That there is no Federal question in the case.
The motion must be sustained upon the first ground. The Federal question now put forward by the plaintiff is that the
This petition appears to have been denied by the Supreme Court without an opinion. Doubtless, if that court had proceeded to pass upon this as a Federal question we should have held it sufficient, but it will be observed that the petition contained a mere suggestion of a violation of a Federal right, not the distinct presentation of a Federal question, and that no reference was made to the Constitution of the United States. Oxley Stave Co. v. Bulter County, 166 U.S. 648. We are left to infer that the petition was denied because the point of constitutionality was not made in either of the courts below. The rule seems to be settled in Indiana, as in many other States, that the matter assigned in the Supreme Court of the State as error must have been properly presented in the court below and there adjudicated. Coleman v. Dobbins, 8 Indiana, 156, 164; Priddy v. Dodd, 4 Indiana, 84; Wesley v. Milford, 41
True, the Federal question was set up at length in the petition filed in the Appellate Court for a writ of error from this court, but that was clearly too late. Fowler v. Lamson, 164 U.S. 252; Missouri Pacific Co. v. Fitzgerald, 160 U.S. 556, 575; Ansbro v. United States, 159 U.S. 695.
In this connection the plaintiff in error urges upon us the proposition that, as it relied solely upon a title derived by a foreclosure and sale in a Federal court, the state court must necessarily have considered and decided that question, and that in such cases the Federal Constitution need not be specially set up and claimed. This argument would necessarily not apply to the Supreme Court of the State, which, as above indicated, might have held and probably did hold that the Federal question, not having been suggested in the court below, could not be made available on appeal. The Appellate Court did not discuss it. There are doubtless a few cases which hold that, where the validity of a treaty or statute or authority of the United States is raised, and the decision is against it, or the validity of a state statute is drawn in question, and the decision is in favor of its validity, and the Federal question appears in the record and was decided, or such decision was necessarily involved in the case, the fact that it was not specially set up and claimed is not conclusive against a review of such question here. Columbia Water Power Company v. Street Railway Co., 172 U.S. 475, 488. But as the validity of
The Federal question, if any such existed, as to which we express no opinion, was not set up or claimed at the proper time, and
The writ of error must, therefore, be dismissed.