Opinion of the Court.

in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, within five years.

"5. Those founded on written contracts, on judgments of any courts, except those courts provided for in the next subdivision, and those brought for the recovery of real property, within ten years.

"6. Those founded on a judgment of a court of record whether of this or of any other of the United States, or of the Federal courts of the United States, within twenty years." Iowa Code of 1873, § 2529.

This action was not brought on a judgment, for there had been no judgment. But it was brought on the defendant's written contract of subscription, and was therefore, by the terms of the Iowa statute, barred in ten years after the cause of action accrued. The action was brought more than ten years after the contract, but within ten years after the order of assessment.

In many jurisdictions, the cause of action, within the meaning of a statute of limitations, would be held to have accrued at the time of the order for an assessment, and not before. It has been so held by the Supreme Court of the State of Illinois, where this company was incorporated and the order of assessment made, as well as by this court in cases coming up from Circuit Courts of the United States and unaffected by decisions of the highest court of the State in which those courts were held. Great Western Tel. Co. v. Gray; Hawkins v. Glenn; Glenn v. Liggett; and Glenn v. Marbury, above cited.

But the Supreme Court of Iowa in the present case held that, as it rested with the directors of the corporation to make that order, the delay in making it could not suspend the operation of the statute of limitations; and that the case was within the rule, established by a series of decisions of that court, that when a plaintiff could at any time, by making a demand, or giving a notice, acquire a right to recover against the defendant, the statute of limitations began to run when he might have done so. Great Western Tel. Co. v. Purdy, 83 Iowa, 430, 433, and cases cited.

Syllabus.

The limitation of actions is governed by the lex fori, and is controlled by the legislation of the State in which the action is brought, as construed by the highest court of that State, even if the legislative act or the judicial construction differs from that prevailing in other jurisdictions. McElmoyle v. Cohen, 13 Pet. 312; Bauserman v. Blunt, 147 U. S. 647; Metcalf v. Watertown, 153 U. S. 671; Balkam v. Woodstock Iron Co., 154 U. S. 177.

Neither the statutes nor the decisions of the State of Iowa upon this subject have made any discrimination against the citizens, the contracts or the judgments of other States, or against any right asserted under the Constitution or laws of the United States. The case is thus distinguished from Christmas v. Russell, 5 Wall. 290, cited at the bar.

The question at what time the cause of action accrued in this case, within the meaning of the statute of limitations of Iowa, was not a Federal question, but a local question, upon which the judgment of the highest court of the State cannot be reviewed by this court.

Judgment affirmed.

GREAT WESTERN TELEGRAPH COMPANY v.

BURNHAM.

ERROR TO THE CIRCUIT COURT OF MILWAUKEE COUNTY, STATE OF

WISCONSIN.

No. 159. Argued and submitted March 19, 20, 1896. - Decided April 13, 1896.

When the highest court of a State, upon a first appeal, decides a Federal question against the appellant, and remands the case for further proceedings according to law, and upon further hearing the inferior court of the State renders final judgment against him, he cannot have that judgment reviewed by this court by writ of error, without first appealing from it to the highest court of the State; although that court declines upon a second appeal to reconsider any question of law decided upon the first appeal.

Statement of the Case.

THIS was an action similar to that of Great Western Telegraph Company v. Purdy, ante, 329, and was brought October 8, 1888, in the circuit court of Milwaukee county in the State of Wisconsin, by the same plaintiff against George Burnham, and prosecuted against his executors, to recover the amount of an assessment alleged to be due under a contract of subscription in the same form as in that case, and under the decree of the circuit court of Cook County in the State of Illinois, therein stated.

The complaint did not state the law of Illinois, nor set forth the decree of assessment in full; but alleged, among other things, that by that decree an assessment of thirty-five per cent a share was laid upon all stockholders who had not paid in full; and that some stockholders, including the defendant, had paid ten dollars or forty per cent on each share, and many stockholders had never paid more than fifty cents or two per cent on a share.

A demurrer to the complaint, upon the ground, among others, that it did not state facts sufficient to constitute a cause of action, was filed by the defendant, and overruled by the court.

Upon appeal by the defendant from the order overruling the demurrer, the Supreme Court of the State, as the record shows, adjudged that the order be reversed, and the cause "remanded to the said circuit court for such further proceedings therein as may be according to law;" and, in its opinion, after deciding that the assessment was unequal and unjust, added: "We do not intend to express any definite opinion as to the real effect of the decree of the Illinois court, or as to how far it concludes the rights of shareholders who were not parties to that proceeding. Those questions are not now necessarily before us, and may be postponed until they arise. We confine our decision to the objection that the complaint shows an unlawful and illegal call or assessment upon Mr. Burnham which should not be enforced." 79 Wisconsin, 47, 52, 53.

The cause was accordingly remanded to the inferior court. The plaintiff refused to amend the complaint, and insisted

Opinion of the Court.

that it stated a sufficient cause of action; and relied upon the decree of assessment as a judgment of a court of the State of Illinois, entitled, under the Constitution and laws of the United States, to full faith and credit in the State of Wisconsin. The inferior court sustained the demurrer, upon the ground "that the complaint does not state facts sufficient to constitute a cause of action, because it does not appear upon the face of the said complaint that a valid or legal assessment was made upon the stockholders, and that the said assessment appears by the said complaint to be unequal and unjust;" and entered final judgment for the defendant, with costs. The plaintiff thereupon sued out this writ of

error.

Mr. Thomas J. Sutherland for plaintiff in error. Mr. William P. Black and Mr. Charles E. Shepard were on his brief.

Mr. Reese II. Voorhees, Mr. Charles Quarles and Mr. George Lines, for defendants in error, submitted on their brief.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

This court has no jurisdiction, upon writ of error, to review a judgment of a state court, unless it was a final judgment, by the highest court of the State in which a decision in the suit could be had, and against a right set up under the Constitution or laws of the United States. Rev. Stat, § 709.

The order of the inferior court of Wisconsin, overruling the defendant's demurrer, with leave to answer over, was clearly not a final judgment, under the Judiciary Act of the United' States, although it was reviewable on appeal in the Supreme Court of Wisconsin, under the statutes and practice of the State.

The judgment which was rendered by the Supreme Court of Wisconsin upon such an appeal cannot be reviewed by this court; because, although it was a judgment of the highest court of the State, and against the plaintiff in error, it was

Opinion of the Court.

not a final judgment, disposing of the whole case, but only reversed the order of the inferior court overruling the demurrer, and remanded the case to that court for further proceedings.

The subsequent judgment of the inferior court, sustaining the demurrer and dismissing the action, cannot be reviewed by this court; because, although that was a final judgment against the plaintiff in error, setting up a right under the Constitution and laws of the United States, it was not a final judgment in the highest court of the State in which a decision in the suit could be had.

The case is singularly like McComb v. Knox County Commissioners, 91 U. S. 1, in which an order of a court of common pleas, overruling a demurrer to an answer, was reversed by the Supreme Court of Ohio, and the case remanded for further proceedings according to law; the court of common pleas, in accordance with that decision, sustained the demurrer to the answer, and the defendant not moving to amend, but electing to stand by his answer, gave judgment against him; and a writ of error to review that judgment was dismissed by this court, Chief Justice Waite saying: "The Court of Common Pleas is not the highest court of the State; but the judgment we are called upon to reëxamine is the judgment of that court alone. The judgment of the Supreme Court is one of reversal only. As such, it was not a final judgment. Parcels v. Johnson, 20 Wall. 653; Moore v. Robbins, 18 Wall. 588; St. Clair v. Lovingston, 18 Wall. 628. The Common Pleas was not directed to enter a judgment rendered by the Supreme Court and carry it into execution, but to proceed with the case according to law. The Supreme Court, so far from putting an end to the litigation, purposely left it open. The law of the case upon the pleadings as they stood was settled; but ample power was left in the Common Pleas to permit the parties to make a new case by amendment." "The final judgment is, therefore, the judgment of the Court of Common Pleas, and not of the Supreme Court. It may have been the necessary result of the decision by the Supreme Court of the questions presented for its determination; but it is none