The writ of error in this case was sued out and allowed by the chief justice of the supreme court of New Hampshire, on June 13, 1882, returnable to October term, 1882, of this court. The transcript of the record was filed here July 14, 1882, and the defendant in error entered his appearance, through counsel, on July 28, 1882, which, though special in terms, was not limited to any particular purpose.
At October term, 1883, a motion was filed to dismiss the cause on two grounds: (1) Because the citation had been served on the defendant in error in Massachusetts by the marshal of that district; and (2) because the present plaintiff in error had been improperly substituted as successor to the plaintiff in the judgment sought to be reviewed. This motion to dismiss, although submitted to the court at that term, was postponed until the hearing on the merits.
So far as the first ground is involved, it comes too late. The alleged irregularity in the service of the citation could, at any rate, only have been taken advantage of by a motion to dismiss, made promptly on an appearance limited to that special purpose, and was cured by such an appearance as was entered in this case. U.S. v. Yates, 6 How. 606, 608; Buckingham v. McLean, 13 How. 150.
The judgment sought to be reviewed was rendered in favor of the defendant in a suit brought by Isaac L. Wilbur upon a judgment rendered in his favor, as syndic of his creditors under the laws of Louisiana, in the Fifth district court of New Orleans, in that state. Wilbur having died in July, 1881, after the judgment against him in the supreme court of New Hampshire, William H. Renaud thereupon, on June 12, 1882, on his petition showing that he had been appointed under the laws of Louisiana to succeed Wilbur as syndic of his creditors, was substituted as plaintiff in the judgment, and allowed to prosecute a writ of error to this court. It was the province of the supreme court of New Hampshire to permit this substitution, and its action in doing so is not open to objection by the defendant in error in this court. We receive the transcript of the record in the cause as it is certified to us by that court in answer to the precept of the writ of error allowed and issued to that end. When brought here it is open to examination only for the purpose of deciding whether it contains a federal question within our jurisdiction, and, if so, whether there is error in the decision of that question by the supreme court of the state. Whether the present plaintiff in error ought to have been substituted for the deceased plaintiff in the judgment to be reviewed was a question of practice under the laws of New Hampshire, which the supreme court of that state had the exclusive right to determine. It is not open to any inquiry on our part under the present writ.
The action was in debt, brought by Wilbur upon a judgment alleged to have been recovered by him in the Fifth district court of the City of New Orleans, in the state of Louisiana, against Joseph S. Abbott, then in full life, and one Edward A. Abbott, for the sum of $23,383.69, with interest thereon from November 1, 1862, as damages in a certain cause then pending in said court between the said plaintiff and the said Joseph S. Abbott and Edward A. Abbott, as copartuers under the name of J. S. & E. A. Abbott, and for costs of suit. Edward A. Abbott, as administrator of Joseph S. Abbott, alone was sued. The plea was nul tiel record. The plaintiff offered in evidence a duly-certified transcript of the record of the judgment sued on. From that it appeared that the citation and copy of the petition were returned by the sheriff, served on J. S. Abbott, one of the defendants, personally, on December 28, 1866. No service on the other defendant appears to have been made. Judgment was afterwards entered therein as follows:
'I. L. Wilbur, Syndic, etc., v. J. S. & E. A. Abbott. (No. 16,987.)
'On motion of E. C. Mix, of counsel for plaintiff, and on introducing due proof of the claim of said plaintiff, it is ordered and adjudged that the default herein entered on the eleventh of January, 1867, be now confirmed and made final; and that plaintiff, I. L. Wilbur, in his capacity as syndic of his creditors, and of the creditors of Wilbur and Borge, recover of the defendants, Joseph S. and Edward A. Abbott, who reside in Concord, in the state of Now Hampshire, are commercial partners there doing business under the style and firm of J. S. & E. A. Abbott, in solido, the sum of twenty-three thousand three hundred and eighty-three 69-100 dollars, with legal interest from the first of November, 1862, until paid, and costs of suit.
twenty-fourth January, 1867.