[61]*61Opinion by
Lewis, O. J.
At tbe present term of tbis Court, tbe judgment of tbe Territorial District Court for tbe County of Storey, having been affirmed in tbis case, the defendants now make an application to me, under tbe Act of Congress entitled “ An Act to establish tbe Judicial Coiu’ts of tbe United States,” for a writ of error to take tbe case to tbe Supreme Court of tbe United States.
Though firmly believing at tbe time tbe application was made that tbe case did not come within tbe 25th section of that Act of Congress, and therefore that a writ of error should not issue, yet tbe value of tbe property in dispute, and a desire to have tbe decision of tbis Court reviewed, if it were possible, have induced me to bear counsel on behalf of tbe appellants, and to give tbe question tbe most thorough examination ; but I have been unable to find any authority, either on principle or precedent, for allowing tbe writ in this case. And in arriving at tbis conclusion, I have not ignored tbe general rule observed in applications of tbis kind — that if any doubt exists as to tbe right, tbe writ should be allowed.
I think it is not claimed by appellants that it is a writ of right and should issue ex delito jusMUce, but rather that it rests in tbe discretion of tbe Judge to whom tbe application is made.
Though tbe entire responsibility of passing upon tbis question, so far as the application in tbis Court is concerned, rests solely upon me, I have not failed to avail myself of tbe counsel of my associate who was engaged with me in tbe bearing of tbe cause, and I am permitted to say that be fully concurs with me in tbe conclusions to which I have arrived.
In tbe consideration of this question it must be borne in mind that a writ of error could only be allowed in tbis case, if at all, by tbe authority of the 25th section of the Act of Congress known as the Judiciary Act, which declares “ that a final judgment or decree in any suit in the highest Court of law or equity of a State in which a decision in tbe suit could be bad, where is drawn in question tbe validity of a treaty or statute of, or an authority exercised under any State, on tbe [62]*62ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of such, their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the .decision is against the title, right, privilege or exemption specially set up or claimed by either party under such clause of the said Constitution, treaty, statute or commission, maybe re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the Chief Justice, or Judge, or Chancellor of the Court rendering or passing the judgment or decree complained of, or by a Justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a Circuit Court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decree as before provided, may, if the cause shall have been once remanded before, proceed to a final decision of the same and award execution. But no other error shall be assigned or regarded as the ground of reversal in any-such case as aforesaid than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said Constitution, treaties, commissions or authorities in dispute.”
The cases enumerated in this section are the only ones in which the Supreme Coxu-t of the United States has any revisory power over the decisions of the highest Court of a State. The decision in this case being the judgment of a State Court, it must be shown that some one of the questions enumerated in tins section was passed upon by it, to authorize the issuance of the writ of error applied for by the appellants. It has been held that it is not indispensable that that fact should appear upon the record mtoUdem verbis, or by direct and positive statement, but if it does not, it must appear clear from the facts stated, by just and necessary inference, that the question was made, and that the Oouit below must, in order to have arrived at the judgment pronounced by it, h^ve come [63]*63to the very decision of that question as indispensable to that judgment. (Crowell v. Randall, 10 Pet. 368; Armstrong v. Treasurer of Athens County, 16 Pet. 281; Satterlee v. Matthewson, 2 Pet. 380.)
Does this case then come within this rule so frequently announced by the Supreme Court of the United States ? I think not. It nowhere appears in the record by direct and positive statement, or inferentially, as imdÁspensable to the judgment pronounced by it, that any of the questions enumerated in section 25 of the Judiciary Act were passed upon or indeed even raised in the case. If, as a matter of fact, any of these questions were involved in the judgment — but the record did not show that fact as required by the rule — it would avail the appellants nothing. There must not only be the decision of some one of these questions, but it must also appear by the record to have been raised and passed upon by the State Court. Quod non appa/red non est.
To sustain this application, it is claimed on behalf of the appellants that the decision of this Court involved a right claimed by them under the Organic Act of the Territory of Nevada; that that Act having vested all judicial power in a “ Supreme Court, District Courts, Probate Courts and Justices of the Peace,” it was their right to have their motion for a new trial heard and determined by the Gourt; and that the decision of the referee, overruling the motion, was nothing more than the act of a private individual, and of no force or effect; that in sustaining the appeal and affirming the judgment of the Court below, this Court conferred judicial power upon the referee, and deprived the appellants of the right oí having their motion for new trial heard and determined by the District Court. And thus it is claimed the record shows that the decision of this Court involved the construction of an Act of Congress, and deprived appellants of a right claimed under it. The facts, as they appear of record, I think, warrant no such conclusion. • .
. It appears that on the 2d day of April, A. D. 1864, this cause was referred, by order of the District Court of Storey County, to a referee to report the facts and a judgment. After a full hearing before the referee, he, on the 9th day of [64]*64May following, reported Ms findings of fact and a judgment in favor of tbe plaintiffs, which report was on the same day confirmed by the District Oourt, and a'judgment entered in accordance with the report of the referee. On the 29th day of June, A. D. 1864, by the consent of counsel, the motion for a new trial, which was made by defendants, was also referred to a referee, who, on the 11th day of July, overruled the motion, and the following day an appeal is taken to the Supreme Court of the Territory of Nevada, the notice of which states that the appeal is taken “ from the judgment made and entered by the above entitled District Court on the 9th day of May, 1864, in favor of plaintiffs and against the defendants;
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[61]*61Opinion by
Lewis, O. J.
At tbe present term of tbis Court, tbe judgment of tbe Territorial District Court for tbe County of Storey, having been affirmed in tbis case, the defendants now make an application to me, under tbe Act of Congress entitled “ An Act to establish tbe Judicial Coiu’ts of tbe United States,” for a writ of error to take tbe case to tbe Supreme Court of tbe United States.
Though firmly believing at tbe time tbe application was made that tbe case did not come within tbe 25th section of that Act of Congress, and therefore that a writ of error should not issue, yet tbe value of tbe property in dispute, and a desire to have tbe decision of tbis Court reviewed, if it were possible, have induced me to bear counsel on behalf of tbe appellants, and to give tbe question tbe most thorough examination ; but I have been unable to find any authority, either on principle or precedent, for allowing tbe writ in this case. And in arriving at tbis conclusion, I have not ignored tbe general rule observed in applications of tbis kind — that if any doubt exists as to tbe right, tbe writ should be allowed.
I think it is not claimed by appellants that it is a writ of right and should issue ex delito jusMUce, but rather that it rests in tbe discretion of tbe Judge to whom tbe application is made.
Though tbe entire responsibility of passing upon tbis question, so far as the application in tbis Court is concerned, rests solely upon me, I have not failed to avail myself of tbe counsel of my associate who was engaged with me in tbe bearing of tbe cause, and I am permitted to say that be fully concurs with me in tbe conclusions to which I have arrived.
In tbe consideration of this question it must be borne in mind that a writ of error could only be allowed in tbis case, if at all, by tbe authority of the 25th section of the Act of Congress known as the Judiciary Act, which declares “ that a final judgment or decree in any suit in the highest Court of law or equity of a State in which a decision in tbe suit could be bad, where is drawn in question tbe validity of a treaty or statute of, or an authority exercised under any State, on tbe [62]*62ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of such, their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the .decision is against the title, right, privilege or exemption specially set up or claimed by either party under such clause of the said Constitution, treaty, statute or commission, maybe re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the Chief Justice, or Judge, or Chancellor of the Court rendering or passing the judgment or decree complained of, or by a Justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a Circuit Court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decree as before provided, may, if the cause shall have been once remanded before, proceed to a final decision of the same and award execution. But no other error shall be assigned or regarded as the ground of reversal in any-such case as aforesaid than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said Constitution, treaties, commissions or authorities in dispute.”
The cases enumerated in this section are the only ones in which the Supreme Coxu-t of the United States has any revisory power over the decisions of the highest Court of a State. The decision in this case being the judgment of a State Court, it must be shown that some one of the questions enumerated in tins section was passed upon by it, to authorize the issuance of the writ of error applied for by the appellants. It has been held that it is not indispensable that that fact should appear upon the record mtoUdem verbis, or by direct and positive statement, but if it does not, it must appear clear from the facts stated, by just and necessary inference, that the question was made, and that the Oouit below must, in order to have arrived at the judgment pronounced by it, h^ve come [63]*63to the very decision of that question as indispensable to that judgment. (Crowell v. Randall, 10 Pet. 368; Armstrong v. Treasurer of Athens County, 16 Pet. 281; Satterlee v. Matthewson, 2 Pet. 380.)
Does this case then come within this rule so frequently announced by the Supreme Court of the United States ? I think not. It nowhere appears in the record by direct and positive statement, or inferentially, as imdÁspensable to the judgment pronounced by it, that any of the questions enumerated in section 25 of the Judiciary Act were passed upon or indeed even raised in the case. If, as a matter of fact, any of these questions were involved in the judgment — but the record did not show that fact as required by the rule — it would avail the appellants nothing. There must not only be the decision of some one of these questions, but it must also appear by the record to have been raised and passed upon by the State Court. Quod non appa/red non est.
To sustain this application, it is claimed on behalf of the appellants that the decision of this Court involved a right claimed by them under the Organic Act of the Territory of Nevada; that that Act having vested all judicial power in a “ Supreme Court, District Courts, Probate Courts and Justices of the Peace,” it was their right to have their motion for a new trial heard and determined by the Gourt; and that the decision of the referee, overruling the motion, was nothing more than the act of a private individual, and of no force or effect; that in sustaining the appeal and affirming the judgment of the Court below, this Court conferred judicial power upon the referee, and deprived the appellants of the right oí having their motion for new trial heard and determined by the District Court. And thus it is claimed the record shows that the decision of this Court involved the construction of an Act of Congress, and deprived appellants of a right claimed under it. The facts, as they appear of record, I think, warrant no such conclusion. • .
. It appears that on the 2d day of April, A. D. 1864, this cause was referred, by order of the District Court of Storey County, to a referee to report the facts and a judgment. After a full hearing before the referee, he, on the 9th day of [64]*64May following, reported Ms findings of fact and a judgment in favor of tbe plaintiffs, which report was on the same day confirmed by the District Oourt, and a'judgment entered in accordance with the report of the referee. On the 29th day of June, A. D. 1864, by the consent of counsel, the motion for a new trial, which was made by defendants, was also referred to a referee, who, on the 11th day of July, overruled the motion, and the following day an appeal is taken to the Supreme Court of the Territory of Nevada, the notice of which states that the appeal is taken “ from the judgment made and entered by the above entitled District Court on the 9th day of May, 1864, in favor of plaintiffs and against the defendants; and also from the order of scdd Oov/rt made in said cause on the 11th day of July, 1864, denying the motion of defendants for a new trial of said cause.”
From this notice of appeal it would appear that the motion for new trial was actually made by defendants before the District Court, and it is from the action of that Court overruling the motion, and the final judgment rendered by it, that they appeal, and not from any proceeding of a referee.
How, then, does the decision of this Court deprive them of the right which they claim, of having their motion for a new trial determined by afproper tribunal? If this notice of appeal is to have any weight, the referee is entirely out of the case, and I am unable to see how the affirmance of the judgment of the District Court involved the decision that the referee had the power to hear the motion for new trial, or that an appeal would lie from his proceedings. To do so the Court would have to decide a point not preáfented by the record, and entirely unnecessary for it to decide in affirming the judgment below. But if it be admitted that the appeal in fact is from the judgment of the Court and from an order of the referee overruling the motion for new trial, the appellants will occupy no better position upon this application, because even then the case would riot come within the rule laid down in the case of Crowell v. Randall and the other authorities cited above. The record would not, even by implication, show that the point suggested by them, or any of the questions enumerated in the twenty-fifth section of the Judiciary Act, was involved [65]*65in tbe decision of tbe Court. Indeed, tbe most favorable construction wbicb can be put upon it, is tbat tbe appellants waived tbeix motion, for new trial, and appealed simply from tbe judgment of tbe Court. Tliis may be done, and if an appeal be taken from the final judgment before the determination of tbe motion for new trial, and tbe appeal is pressed in the appellate tribunal before any move is made to have it disposed of, tbe only legitimate conclusion wbicb could be drawn from such conduct would be tbat tbe motion bad been waived; Tbe appellants bad a right to appeal from tbe judgment of tbe Court below, even during tbe pendency of tbe motion, and if their position be correct, they did so, and tbe case came pr.operly before this Court. If tbat be done, the respondents have no cause of complaint. It is tbe appellants rights alone wbicb are affected by it, and there being an appeal from a final judgment, I see no reason why tbe appellate tribunal should not pass upon it.
If an appellant wishes to rely upon an appeal from a final judgment of an inferior Court, and to waive tbe rights wbicb a motion for new trial would give him, I know of no reason why be should not be permitted to do so. And this is tbe position wbicb tbe appellants occupy before us, if it be correct that tbe motion for a new trial has not been determined, or tbat tbe order of tbe referee was merely tbe act of a private individual. No appeal could be taken from such order, consequently this must be taken to be an appeal simply from tbe judgment rendered by tbe District Court. We could not review tbe order of tbe referee in this case, but we could inquire as to whether tbe judgment of tbe District Court was sustained by the findings of fact reported; if so, it was tbe duty of this Court to affirm it. If there was no final.judgment, and-tbe appeal was from an order of a referee overíuling a motion for a new trial, tbe question would assume a very different aspect. In tbat case tbe appellate tribunal in sustaining such order, would necessarily have to decide tbat tbe referee had the power to make it. But no such necessity exists in this case, as there is no appeal from any order of a referee, or if it be admitted tbat there is, tbe appeal having also been taken from tbe final judgment of tbe District Court, tbe decision of this Court [66]*66affirming that judgment would not necessarily involve tlie decision that tbe referee bad, or bad not, tbe power to bear and determine a motion for new trial; for as stated before, tbe appellants having taken tbe appeal and prosecuted tbe same without having questioned tbe power of tbe referee, and his order being tbe mere-i^se dixit of a private individual, having none of tbe elements of judicial action (as claimed by appellants), tbe only rational conclusion which we can draw is, that they waived a determination of tbe motion for new trial, and relied entirely upon tbe appeal from tbe judgment of tbe Court. Is it clear then from tbe facts stated on tbe record, by just and necessary inference, that any question was made by this Court as to tbe power of tbe referee, and in order to have arrived at tbe judgment pronounced,- was the decision of that question indispensable ? Would it be just to presume that tbe Court passed upon a question not presented by tbe record and which was not necessarily involved in tbe judgment pronounced? Clearly not. The writ of error therefore should not issue. (Wilson v. The Blackbird Creek, Marsh Association, 7 Pet. 215; Hickie v. Stark, 1 Pet. 94; Laws United States Courts, 122, note.)
But tbe Chief point upon which tbe appellants claim tbe issuance of this writ is, that tbe right of apj)eal which existed under tbe Territorial Grovernment at tbe time this action was commenced survives, and is not affected by tbe change in our form of Grovernment. This position in effect simply amounts to this, that that portion of the Organic Act of tbe Territory of Nevada which authorized an appeal from tbe final decision of tbe Supreme Court of the Territory to tbe Supreme Court of tbe United States, is still in force as to those cases which were commenced prior to the adoption of tbe State Government, or that the right of .appeal, as it existed by the laws in force at the commencement of this action, became a vested right in appellants. If it can be said that the appellants had a right of appeal at all before a judgment was rendered against them, or order made affecting their rights, it was of that contingent, uncertain and shadowy nature, that it could scarcely be called a vested right. But admitting this vested right to exist, what wa-s it ? Simply the right to appeal from the final decision of the Supreme Court of the Territory, and not from [67]*67tbe final decision of tbe Supreme Court of tbe State. Tbe Organic Act from wbicb tbe riglit is claimed, provides that “ writs of error and appeals from tbe final decision of said (Territorial) Supreme Court shall be allowed, and may be taken to tbe Supreme Court of tbe United States,” but there is no final decision of tbe Supreme Court of tbe Territory in this case; ergo, no writ of error should issue, and no appeal can be taken. Again, the provision of our State Constitution which declares, “that all rights, actions, prosecutions, judgments, claims,” etc., “ shall continue as if no change had taken place,” cannot possibly help this application. If the appellants have tbe right to claim tbe issuance of this writ, it must be independent of our State Constitution. Tbe Supreme Court of tbe United States would scarcely respect the jurisdiction conferred upon it by the fundamental law of the State of Nevada.
As the writ of error in this case would be issued from a State Court, tbe Supreme Court of tbe United States would not look to tbe Constitution of this State to ascertain if tbe rights of the appellants were preserved by it, but would only inquire' if the case came within the 25th Section of the Judiciary Act. That section specifies all the cases in which the decision of the highest Court of a State can be re-examined by the Supreme Court of the United States, and if this case does not come within it, vested rights and State Constitutions would not be looked to for the power to assume jurisdiction of it. The fact of a case having been commenced in the Territorial Court, does not bring it within that section.
One further point made on this application remains to be disposed of, which is that the parties to the action are citizens of different States. While this fact, which here nowhere appears upon the recor'd, would be sufficient to give the Federal Courts jurisdiction in the first instance, I am unable to see how it can be taken advantage of after final judgment on an application of this kind. It is not one of the cases specified in the section quoted above, in which a writ of error may be issued, and the appellate power of the Supreme Court of the United States in this respect is strictly limited to the cases given in that section. For these reasons I have deemed it my duty to deny this application.