HUGHES v. DUNDEE MORTGAGE & TRUST INVESTMENT co. 45
or reverse its judgment, according to law. Oohens v. Virginia, 6
Wheat. 409. And while it may not be an original "suit," in the
sense in which that term is used in the eleventh amendment, which
was intended to prevent individuals from asserting claims against a
state in the national courts, or otherwise than as it might allow, it is
in no sense a mere continuance or prolongation of the action, the judg-
ment in which it is brought to review. In this respect it is similar
to a suit in equity to set aside a judgment between the same parties
in an action at law; and, like it, it is so far an original, adverse, cor-
rective proceeding, the mere bringing of which in no way modifies the
force and effect of the judgment in question.
But the plaintiff insists that the latter part of section 505 of the
Code of Civil Procedure, which declares that an action shall be deemed
pending until its final determination on appeal, is, by virtue of sec-
tion 721 of the Revised Statutes, which declares that the laws of the
state, except where the law of the United States otherwise provides,
shall be a rule of decision, in trials at common law, in this court, in
cases where they apply, applicable to this case; and. that by virtue
thereof the former action between these parties is now pending in the
supreme court of the United States, and the judgment of this court
therein is suspended, and of no force, either as a bar or an estoppel,
between the parties thereto.
Section 691 of the Revised Statutes provides that “all final judg-
ments of any circuit court," when the matter in dispute exceeds a ·
certain amount, "may be re-examined, and reversed or aiiirmed, in E
the supreme court, upon a writ of error. " The judgment in question
was removed to the supreme court under this section. At common
law, and in contemplation of this statute, it was a "final" one. The
action terminated with it, and therefore it was no longer pending any-
where or at all. Moreover, no appeal could be taken from this judg-
ment. By the law of the United States it could only be reviewed on
a writ of error, and then only for error in law apparent on the face
of the record. Bev. St. §§ 691, 1011. V
Admitting, then, that the force and effect of the·judgment in the
former action between these parties is, under section 721 of the Re-
vised Statutes, to be ascertained by reference to the law of the state,
where the same applies, this appears to be a case in which such law
does not apply. It does not apply because the judgment cannot be
the subject of an appeal, and because its review in the appellate court
is otherwise provided for by the law of the United States.
The demurrer to this reply is sustained.
The demurrer to the third reply to the fifth defense raises the
question, is the defendant estopped to assert the validity and binding
force of the judgment in the former action, after having removed the
same to the supreme court on the allegation that it is erroneous and
ought to be reversed? Or, more correctly speaking, is the defendant
precluded from pleading this judgment as a bar to this action while ~