question for the first time in the petition, folk & O. V. R. Co. 228 U. S. 596, 599, for the writ of error.

57 L. ed. 982, 983, 33 Sup. Ct. Rep. 609; Johnson v. New York L. Ins. Co. 187 U. Cosmopolitan Min. Co. v. Walsh, 193 U. S. S. 491, 47 L. ed. 273, 23 Sup. Ct. Rep. 194; 460, 471, 472, 48 L. ed. 749, 753, 754, 24 Simmerman v. Nebraska, 116 U. S. 54, 29 | Sup. Ct. Rep. 489; Ludeling v. Chaffe, 143 L. ed. 535, 6 Sup. Ct. Rep. 333; Leeper v. U. S. 301, 36 L. ed. 313, 12 Sup. Ct. Rep. Texas, 139 U. S. 462, 467, 35 L. ed. 225, 439; Sayward v. Denny, 158 U. S. 180, 39 226, 11 Sup. Ct. Rep. 577; Warfield v. Chaffe, | L. ed. 941, 15 Sup. Ct. Rep. 777; Vandalia 91 U. S. 690, 692, 23 L. ed. 383, 384; Clark R. Co. v. Indiana, 207 U. S. 359, 367, 52 v. Pennsylvania, 128 U. S. 395, 397, 32 L. L. ed. 246, 248, 28 Sup. Ct. Rep. 130; 4 ed. 487, 488, 9 Sup. Ct. Rep. 113; Manning Fed. Stat. Anno. 489. v. French, 133 U. S. 186, 192, 193, 33 L. ed. 582, 585, 586, 10 Sup. Ct. Rep. 258; Butler v. Gage, 138 U. S. 52, 56, 34 L. ed. 869, 871, 11 Sup. Ct. Rep. 235.

The statement of the court below in al-port a Federal question, or any other, into lowing the writ of error does not aid plaintiff in error in the attempt to present the Federal question.

The opinions show affirmatively that the court below decided the case against the plaintiff in error on the evidence and on questions of local or general law broad enough to sustain the judgment, and the If any constitutional questions were in-effect was to deprive this court of jurisdicvolved in this litigation below, it would seem that they must have rested on the Constitution of the state of Indiana.

tion through courts of justice is due process,
and when secured by the law of the state
the constitutional requirement is satisfied.
Due process is so secured by laws operating
on all alike, and not subjecting the in-
dividual to the arbitrary exercise of the
powers of government, unrestrained by the
established principles of private right and
distributive justice.
Ibid.

lations of rights secured by the Constitution of the United States, aptly set forth and referred to in some proper way, and it is contended by the defendant in error that the writ should be dismissed for that reason. We find in the opinion of the supreme court of Indiana a statement that "both parties have treated this suit as one arising under the provisions of the 14th Amendment to the Federal Constitution, and as presenting the questions of due pro

Mr. Justice Day delivered the opinion cess of law and rights guaranteed by article of the court:

The plaintiff in error, by complaint filed in the superior court of Vanderburgh county, state of Indiana, sought to vacate a judgment of foreclosure rendered by that court in a prior case, and to be permitted to redeem the property therein involved, and| prays for other relief; and, judgment having been entered in favor of the defendant in error, which was affirmed by the supreme court of Indiana (172 Ind. 140, 86 N. E. 963, 87 N. E. 1029), this writ of error was sued out.

The facts, so far as pertinent to our review, are: The complaint, in the fourth paragraph, alleged that the plaintiff in error was the owner of certain property, subject to a mortgage foreclosed in a former suit; that she was a minor when the foreclosure proceedings were had; that she was not a resident of Vanderburgh county, where the action was brought, but was and had been for many years [242] a resident of Gibson county, and that she was not summoned in such action, had no knowledge of its pendency, and did not waive service or enter her appearance therein. It was further alleged that the plaintiff in error was not amenable to the jurisdiction of the sheriff of Vanderburgh county, but that, although she was not served with process, he made a false return of a pretended summons, by which the court was wrongfully imposed upon, and, being so advised, at the instance of attorneys for the predecessor of defendant in error, the court appointed a guardian ad litem for her, who answered in the suit, and that a decree was rendered, her property sold, and bid in by the predecessor of the defendant in error. The demurrer of the defendant in error to this paragraph, thus construed, was sustained by the lower court, and its decision affirmed by the supreme court. Other paragraphs of the complaint alleged fraud on the part of the predecessor of the defendant in error and her attorneys. The lower court found against this charge, and the supreme court, after stating that there was legal evidence to support the finding, refused to disturb it.

The record is meager of attempts to raise a Federal question by reason of alleged vio

1, § 21, of the state Constitution," and the court, after making this statement, takes up the various grounds of attack upon the original decree for alleged fraudulent service or want of service upon the minor defendant in the foreclosure proceedings, [243] and disposes of them against the contention of the plaintiff in error. There is no repudiation of the position of both parties that questions were raised under the 14th Amendment to the United States Constitution, and we think the court may be fairly taken to have regarded such questions as duly before it for consideration. Where a state court holds that a Federal question is made before it, according to its practice, and proceeds to determine it, this court will regard the question as duly made. San José Land & Water Co. v. San José Ranch Co. 189 U. S. 177, 179-180, 47 L. ed. 765, 766, 768, 23 Sup. Ct. Rep. 487; Montana ex rel. Haire v. Rice, 204 U. S. 291, 299, 51 L. ed. 490, 494, 27 Sup. Ct. Rep. 281; Chambers v. Baltimore & O. R. Co. 207 U. S. 142, 148, 52 L. ed. 143, 146, 28 Sup. Ct. Rep. 34; Atchison, T. & S. F. R. Co. v. Sowers, 213 U. S. 55, 62, 53 L. ed. 695, 697, 29 Sup. Ct. Rep. 397.

In the opinion of the supreme court upon rehearing, the charge that the service of process was fraudulently procured by the predecessor in title of the defendant in error or her attorneys was held to be foreclosed by the findings of the court below, and the supreme court held that the findings were supported by testimony in the record showing competent evidence to that end. It is urged that upon this writ of error this court should re-examine the conclusions of fact just referred to and the rulings of the supreme court of Indiana in respect thereto. This court has repeatedly held that in cases coming to it from the supreme court of a state, it accepts as binding the findings upon issues of fact duly made in that court. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 107, 53 L. ed. 417, 428, 29 Sup. Ct. Rep. 220; Rankin V. Emigh, 218 U. S. 27, 34, 54 L. ed. 915, 920, 30 Sup. Ct. Rep. 672; Kerfoot v. Farmers' & M. Bank, 218 U. S. 281, 288, 54 L. ed. 1042, 1043, 31 Sup. Ct. Rep. 14. That

principle is applicable here. The case does, to mislead the sheriff, is it an imposition or not come within the exceptional class of cases where what purports to be a finding of fact is not strictly such, but is so involved with and dependent upon questions of law bearing upon the alleged Federal right as to be a decision of those questions rather than of a pure question of fact, or where there is that entire lack of evidence to [244] support the conclusion upon the Federal question that gives this court the right of review. Kansas City Southern R. Co. v. C. H. Albers Commission Co. 223 U. S. 573, 591, 56 L. ed. 556, 565, 32 Sup. Ct. Rep. 316; Creswill v. Grand Lodge K. P. 225 U. S. 246, 261, 56 L. ed. 1074, 1080, 32 Sup. Ct. Rep. 822; Southern P. Co. v. Schuyler, 227 U. S. 601, 611, 57 L. ed. 662, 669, 43 L.R.A.(N.S.) 901, 33 Sup. Ct. Rep. 277; Portland R. Light & P. Co. v. Railroad Commission, 229 U. S. 397, 411, 412, 57 L. ed. 1248, 1258, 1259, 33 Sup. Ct. Rep. 820.

fraud upon the court to present such summons and return and obtain a judgment. upon it, and is it a charge of fraud or imposition upon the court to allege that the court was wrongfully imposed upon by such false return, and was thus falsely advised? The whole allegations must be taken together, and the scope and theory of the par agraph, as we construe it, is that the court was misled by a false return of the sherThe court had a right to rely and act upon the return. It imports verity to the court. The sheriff assumes the responsibility, in taking the office, of seeing to it. that he does make the right service. Nichols v. Nichols (1884) 96 Ind. 433; State ex rel Robinson v. Leach (1858) 10 Ind. 308; State ex rel. Chapman v. Lines (1853) 4 | Ind. 351.

The supreme court of Indiana stated the question upon the decision of which the Federal question of due process arises as follows:

iff.

"If this were not true, no litigant could ever know when his rights were adjudicated and set at rest; and, to the end that the party may be made whole, an action for a false return will lie. Splahn v. Gillespie (1874) 48 Ind. 397; Rowell v. Klein (1873) 44 Ind. 290, 15 Am. Rep. 235.

a

"If it be said that the amount of bond

sheriff is required to give might not cover the damage in any or every case, it is sufficient to say that that is a legislative matter, and not a judicial one."

The question then is, does the ruling predicated upon the principles thus stated, made in the state court wherein the party has been duly heard, amount to a denial of due process of law within the meaning of the Federal Constitution?

"The question is then presented whether the allegations that appellant was a minor, was not a resident of Vanderburgh county, was a resident of Gibson county, and had been for many years, that no summons was served on her, that she had no knowledge of the proceedings, did not waive service, nor did anyone for her, or in her behalf or with her consent, enter appearance for her, that she was not amenable to the jurisdiction of the sheriff of Vanderburgh county, that, notwithstanding that she was not This court has recognized the difficulty served with process, the sheriff of Vander- of satisfactorily defining in general terms burgh county made a false return of a sum- which shall apply to all cases what is meant mons, and the court was wrongfully im- by the term "due process of law," and the posed upon by such false return, and, being desirability of judicial determination upon thus falsely advised, at the instance of ap- each case as the question arises. Davidson pellant's attorneys [i. e., the attorneys for v. New Orleans, 96 U. S. 97, 24 L. ed. 616. the predecessor of the defendant in error], If the exercise of judicial power be such appointed a guardian ad litem for her,— "as the settled maxims of law permit and constitute a charge of fraud. The return sanction, and under such [246] safeguards was regular on its face. The court had for the protection of individual rights as jurisdiction of the subject-matter. and ap- those maxims prescribe for the class of cases parently jurisdiction of the person of ap- to which the one in question belongs," there pellant. The false return was not pro- has been no deprivation of due process of cured by the fraud, collusion, or imposition law. Cooley, Const. Lim. 7th ed. 506; of the plaintiff or his [her] attorneys [in Leigh v. Green, 193 U. S. 79, 87, 48 L. ed. the foreclosure suit]. It is not alleged 623, 626, 24 Sup. Ct. Rep. 390. And this that either knew of the fact that there had court, speaking by Mr. Chief Justice Fuller, been no service on appellant. The allega- in Leeper v. Texas, 139 U. S. 462, 468, tions practically present this question: If, 35 L. ed. 225, 227, 11 Sup. Ct. Rep. 577, without any fraud, or any act on the part said: "Law in its regular course of adminof a party to an action or his attorney, a istration through courts of justice is due return is made by a sheriff showing serv- process, and when secured by the law of the ice, regular on its face, without knowledge state, the constitutional requirement is satof the party that there was in fact no serv-isfied." This language was quoted with apice, and no act is done [245] or thing said proval in Iowa C. R. Co. v. Iowa, 160 U. S.

389, 393, 40 L. ed. 467, 469, 16 Sup. Ct. tion Walker v. Robbins, 14 How. 584, 585, Rep. 344. 14 L. ed. 552; Knox County v. Harshman, 133 U. S. 152, 156, 33 L. ed. 586, 588, 10 Sup. Ct. Rep. 257.

In the present case the state has made provision for the service of process, and the original party in the foreclosure proceeding did all that the law required in the is sue of and attempt to serve process; and, without fraud or collusion, the sheriff made a return to the court that service had been duly made. The duty of making such service and return by the law of the state is delegated to the sheriff, and, although contrary to the fact, in the absence of any attack upon it, the court was justified in acting upon such return as upon a true return. If the return is false, the law of the state, as set forth by its supreme court, permitted

Without the necessity of deciding more in the present case, it is enough to say that the decision of the supreme court of Indiana, made under the circumstances detailed, did not, in our opinion, deprive the plaintiff in error of due process of law within the meaning of the 14th Amendment.

It follows that the judgment of the Supreme Court of Indiana should be affirmed. Judgment affirmed.

COMPANY, Plff. in Err.,

a recovery against the sheriff upon his [248] NORTH CAROLINA RAILROAD bond. We are of the opinion that this system of jurisprudence, with its provisions for

V.

A. ZACHARY, Administrator of
Herbert H. Burgess.

(See S. C. Reporter's ed. 248-261.)

Error to state court
how raised.

· Federal question

1. An immunity from liability under the employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, U. S. Comp.

safeguarding the rights of litigants, is due JAMES process of law. It may result, unfortunately, as is said to be the fact in this case, that the recovery upon the sheriff's bond will not be an adequate remedy, but statutes must be framed and laws administered so as to protect as far as may be all litigants and other persons who derive rights from the judgments of courts. So far as this record discloses, the purchaser at the sher- NOTE. On the general subject of writs of iff's sale had a right to rely upon the record, error from United States Supreme Court which imported verity as to the nature of to state courts-see notes to Martin v. the service upon the plaintiff in error. If Hunter, 4 L. ed. U. S. 97; Hamblin v. this were not true, as the supreme court of Western Land Co. 37 L. ed. U. S. 267; Re [247] Indiana points out, there would be no Buchanan, 39 L. ed. U. S. 884, and Kipley v. Illinois, 42 L. ed. U. S. 998. protection to parties who have relied upon judicial proceedings importing verity, upon the faith of which rights have been adjudicated and value parted with. In a case of this character the law must have in view, not only the rights of the defendant who has been a victim of a false return on the part of the sheriff, but of persons who have relied upon the regularity of the return of officials necessarily trusted by law with the responsibility of advising the court as to the performance of such duties as are here involved. Were the law otherwise, titles might be attacked many years after they were acquired, where the party had been guilty of no fraud, and had acted upon the faith of judicial proceedings apparently perfect in every respect.

This has been the rule of law applied to a similar situation in the courts of other states. Gregory v. Ford, 14 Cal. 138, 73 Am. Dec. 639; Stites v. Knapp, Ga. Dec. pt. 2, p. 36; Taylor v. Lewis, 2 J. J. Marsh. 400, 19 Am. Dec. 135; Gardner v. Jenkins, 14 Md. 58; Smoot v. Judd, 184 Mo. 508, 83 S. W. 481; Johnson v. Jones, 2 Neb. 126; Wardsboro v. Whitingham, 45 Vt. 450; Preston v. Kindrick, 94 Va. 760, 64 Am. St. Rep. 777, 27 S. E. 588. And see in this connec

On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513.

On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33.

As to when Federal question is raised in time to sustain the appellate jurisdiction of the Supreme Court over state courts-see note to Chicago, I. & L. R. Co. v. McGuire, 49 L. ed. U. S. 414.

On liability of lessor of railroad for injuries caused by negligence of another company using the road under a lease-see note to Caruthers v. Kansas City, Ft. S. & M. R. Co. 44 L.R.A. 737.

On the constitutionality, application, and effect of the Federal employers' liability act -see note to Lamphere v. Oregon R. & Nav. Co. 47 L.R.A. (N.Š.) 38.

On review of questions of fact on writ of error to a state court-see note to Smiley v. Kansas, 49 L. ed. U. S. 546.

On what questions the Federal Supreme Court will consider in reviewing the judgments of state courts-see note to Missouri ex rel. Hill v. Dockery, 63 L.R.A. 571.

Stat. Supp. 1911, p. 1322), must be re-containing some cars that had come from garded as sufficiently asserted for the pur- another state was killed by a switching enpose of sustaining a writ of error from the gine while he was attempting to cross the Federal Supreme Court to the highest court tracks intervening between the engine and of a state, whether the question was prop- his boarding house is at least sufficient to erly raised in the trial court, according to require the submission to the jury of the the local practice, or not, where such im- question of the carrier's liability under the munity was expressly claimed, and the high- employers' liability act of April 22, 1908, est court of the state either decided or as giving a right of recovery against an insumed that the record sufficiently presented terstate railway carrier for the death of an a question of Federal right, and decided employee while engaged in interstate comagainst the party asserting that right. [For other cases, see Appeal and Error, 11681270, in Digest Sup. Ct. 1908.] Master and servant — employers' liability interstate railway carrier liability of lessor railway company. 2. The lessor of an intrastate railway to

merce.

[For other cases, see Trial, VI. b, in Digest Sup. Ct. 1908.]

[No. 144.]

February 2, 1914.

an interstate railway carrier is, through its Argued December 17 and 18, 1913. Decided lessee, a "common carrier by railroad engaging in commerce between the states" within the meaning of the employers' liability act of April 22, 1908, where, under the local law, the lessor is responsible for all acts of negligence of its lessee occurring in the conduct of the business upon the

lessor's road.

[For other cases, see Master and Servant, II.,
in Digest Sup. Ct. 1908.]
Master and servant

employers' llability employment of firemen in interstate commerce - liability of lessor railway company. 3. A railway fireman killed while employed in interstate commerce by a lessee interstate railway carrier must be regard ed as employed also by the lessor railway company in such commerce, within the meaning of the act of April 22, 1908, although the leased railway is an intrastate one, where, under the local law, the lessor is responsible for all acts of negligence of its lessee occurring in the conduct of the business upon the lessor's road. [For other cases, see Master and Servant, II.,

in Digest Sup. Ct. 1908.] Error to state court

scope of review

N ERROR to the Supreme Court of the

State of North Carolina to review a

judgment which affirmed a judgment of the Superior Court of Guilford County, in that state, in favor of plaintiff in an action to recover damages from a carrier for the negligent killing of an employee. Reversed and remanded for further proceedings.

See same case below, 156 N. C. 496, 72 S. E. 858.

The facts are stated in the opinion. Mr. John K. Graves argued the cause and filed a brief for plaintiff in error:

The record, discloses neither allegation nor proof of the existence of any beneficiary or beneficiaries designated in the Federal act.

Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 57 L. ed. 417, 33 Sup. Ct. Rep. 192; Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 173, 57 L. ed. 785, 33 Sup. Ct. Rep.

426, 3 N. C. C. A. 806.

The question of the applicability of the Federal act narrows itself into the question whether the deceased at the time he was struck was employed in interstate commerce. If he was so employed at that time, the railroad company must have been engaged in interstate commerce through him.

Colasurdo v. Central R. Co. 180 Fed. 832. The testimony clearly shows that the cars were in the course of a through interstate journey, and the natural inference from the testimony is that some, at least, of the cars were loaded with interstate freight, though that feature is immaterial, the cars being employed in interstate commerce, regardless of whether they were loaded or empty.

Johnson v. Southern P. Co. 196 U. S. 1, 21, 49 L. ed. 363, 371, 25 Sup. Ct. Rep. 158, 17 Am. Neg. Rep. 412; Northern P. R. Co. V. Maerkl, 117 C. C. A. 237, 198 Fed. 1; Pedersen v. Delaware, L. & W. R. Co. 229 232 U. S.