“ To give effect to the assignments of error we should be obliged to make the impossible ruling that, despite the overruling of a demurrer to the counterelaim by the trial court, and the decision in respect to that pleading made by the appellate court on the first appeal, a mere inspection of the counterclaim so plainly demonstrates that the pleading is destitute of merit that it should be held to have been the duty of the state court of last resort to have treated the pleading as a sham and to have disposed of the appeal upon the hypothesis that the counterclaim was nonexistent. ”

“ Construing the statutes of Indiana, the court held that the cause of action asserted in the counterclaim survived the death of the party deceased, against whom a recovery had been had, that such cause of action could have been revived against the personal representative of the deceased, and that the personal representative was a necessary party appellant, and, not having been made a coappellant and served with notice of the appeal, the court was without jurisdiction to pass upon the errors assigned upon the appeal. ”

“ These assignments plainly import that the supreme court of Indiana, on dismissing the appeal, considered and decided a question which had been submitted to the jury on the trial; viz., whether the matters alleged in the counterclaim as the basis for a recovery over against the plaintiffs had or had not been concluded by the Illinois judgment sued upon by the plaintiffs. We do not so construe the opinion and decision of the court. ”