SIMMERMAN v. STATE OF NEBRASKA.

116 U.S. 54 (6 S.Ct. 333, 29 L.Ed. 535)

SIMMERMAN v. STATE OF NEBRASKA.1

Decided: December 7, 1885

Enoch Totten and Wm. Leese, for the motion.

Mathias Simmerman, p. pr. in opposition.

WAITE, C. J.

It nowhere appears from this record, either in the application for a change of venue, or in the objections to the admissibility of evidence, to the charge of the court as given, or to the refusals to charge as requested, or in the motion for a new trial, the assignement of errors in the supreme court of the state, or the opinion filed in that court, that any federal question was actually presented for consideration, or in any way relied on, before the final judgment from which the writ of error has been taken. Such being the case we cannot take jurisdiction. Detroit Railway Co. v. Guthard, 114 U. S. 134; S. C. 5 Sup. Ct. Rep. 811; Brown v. Colorado, 106 U. S. 95; S. C. 1 Sup. Ct. Rep. 175. The fact that. after the final judgment, and in the petition for a writ of error to this court, which seems to have been treated also as a petition for rehearing, a federal question was presented, is not enough. It was so decided in Susquehanna Boom Co. v. West Branch Boom Co., 110 U. S. 57; S. C. 3 Sup. Ct. Rep. 438. As we said in that case: 'we act on the case as made to the court below when the judgment was rendered, and cannot incorporate into the record any new matter which appears for the first time after the judgment on a petition for rehearing. Such a petition is no part of the record on which the judgment rests.'

The motion to dismiss for want of jurisdiction is granted.

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1

S.C. 17 N. W. Rep. 115.