STRASBURGER V. BEECHER.
209
STRASBURGER
et al. v.
BEECHER.
(Circuit Coy,rt, D. Montana. June 80, 1890.)
1.
FBDERAL COURTS-ADMISSroN COURTS. , ,
2.
Act Cong.· Feb. 22,1889, under which the state of Montana was admitted to the Union, provides that the federal circuit and district courts established by that act shall be the successors of the supreme and district courts of the territory, in respect of all casell then pending in the latter of which the federal courts would have had jurisdiction had they been in existence; but it further provides that no civil action in which the U.nited States is not a party shall be transferred to the federal courts except on the written request of one of the parties, filed in the proper court. HeUl, that the provisions of the general statute regulating the removal of causes from, state to federal courts have no application to transfers made under this statute. "', .The filing of a stipulation for a continuance in the state court after the admisllion of. the state is not a waiver of the parties' right to transfer the caulle to the federal court, under this statute.
OF N'BW STATES ':""TRANSFERS '
FROM TERRITORIAL
SAME-ApPLIOArtoNFoR TRANSFER-WAIVllR·
8.
SAME-'GRANTING TRANSFER-DISQUALIFIOATION OF JUDGE.
The fact judge of the state court had been an attorney of record in the cause would not dillqualify him from entertaining the application for a transfer to the federal'court, 'cOntemplated by the statute, as he is not called on to exercise any judicial function In regard thereto, and his order for the transfer is merely formal.
L
SAME-NoTIOE Td ADVERSE PARTY.
II·. SAMJi:......CITIZENSRIP:· . . . An allegation in the petition for thirtransfer that plaintift was at the institution of, the suit a citizen of "the state of Montana," and defendant a citizen of Minne80ta, does not show 1urisdiction in the federal court,. as contemplated by'the statute; for when the suit was instituted Montana was a territory, and jurisdiction on the ground of citizenship doell notar1lle where one party is a citizen of a state and the other of a territory.
The adverse party entitled to notice of such application for transfer to the federal court, as there is nothing in,the statute requirmg it.
6.
SAME-JURISDICTIONAL AMOUNT.
An allegation that the property in dillpUte, which is mining property, is worth more than 15,000 at the date of the applIcation, is not su1llcient to show thlf; the value at the time of bringing suit was within the jurisdiction of the federal courts, as reqUired by the statute.
At Ll\w. On motion to remand from the circuit court of the United States to the state court. Luce &- Luce, for plaintiffs. P. P. Sterling and J. A. Savage, for defendant. KNOWLES, J. The above suit is one at equity, instituted in one of the district courts for the territory of Montana, to determine the right to the :possession of a lode mining daim, and as to who has the right to a patent to the same from the United States. Plaintiffs instituted their suit in the territorial district court.in Park county, Mont., on the 14th day of May, 1887. The defendant subsequently answered to the merits of plaintiffs' compll\int. The parties entered into several stipulations .for continuances of the cause from term to term. The last one was on the 29th day of December, 1890, and, as it will be seen, after Montana became a state in tM Union.. On the 5th day of February, 1890, defendant filed his petition in said district court for said Park county, duly verified, asking to have the to the United States circuit v.44F.no.4-14
210
FEb'ERAL REPORTER,
'Vol. 44.
court for the district of Montana. In this petition it is set forth that the value of the property in dispute exceeds $5,000, and that the plaintiffs were at the time the action was commenced, and still are, citizens of the state of Montana, and that defendant was atsubh date, and still is, a citizen of the of Minnesota. To the hearing or granting of this .tion plaintiffs file their protest, and state that the said district court should not hear tbesame, for the reason that the judge thereof, FRANK HENRY, had been an attorney of record in said cause before he was elected judge; that the cause had been continu,ed by a stipulation, signed by both attorneys for plaintiffs and defendant, over the January term ofsaid court; and because no notice ortha said motion or petition had been served on the attorneys for plaintiffs. Notwithstanding this protest, the judge ordered the cause trans/erred to this court. . . The plaintiffs now come into this court, and move to remand the cause to the district court upon' about the same grounds setforth in their protest, with the additional grounds that defendant filednob(md, as re:'quiredby law ill the removal ora cause frorna state to acircuit court, arid that he has entered no copy of the record of the suit in the said circuit court. The consideration of this motion to remand presents some questions of importance, which have not as yet been consillered under the statute of the United States applicable to the tra.nsferofcauses which were peuding in the courts of the territoryatthe date of Montana's admission into the.Union, to the United States courts.. Section ,23 of" An act to provide for t1).e division of Dak.ota into twostil.tes, and to enable the people of North Dakota, South Dakota, Montana, and Washington to form constitutions and state governments, and tobeadIllitted into the Union on equal footing with the original states, and to make of public lands to such states," approved February 22, 1889, provides . . , "That in respect to all cases, proceedings, and matters now pending in the supreme or district courts of either of the territories mentioned in this act at tbetime of the admission into the Union of either of the states mentioned in this act, and arising within the limits of any such state, whereof the circllit or district courts by this act established might have had jurisdiction, under the laws of the United States. had such courts existl'd at the time of the commencement of such cases, the said circuit and district courts. respectively, shall be the succ!lssors of. said supreme and district courts of said territory, respect tOaH othel' cases, proceedings, and matters pending in the supreme or district courts of. any of the territories mentioned in this act at the time of the admission of such territories into tue Union, arising within the .limits of sucb proposed state. the courts established by such state Shall be the successors of said supreme and district tel'l'itorjalcourts; and all the files, records, indictments, alid proceedings relating tQ apy such cases shall be trans:' fetred to such ch'cuit. district, and state coul'ls, respectively; and the same shan be proceeded With therein indue course of law; but nO writ, action, indictment, cause, or proceedings now pending,or that prior to the admission ofaI)y afthe states mentioned in .thisact shall be pending, In Bny territorial the admiscourt in any of the territories mentioned in this act, shall sion of any suchstaj;einto the Union, but thE! same spall be transferred and proceeded with in thll proper United States circ'ult;district, or state cburt, as the case may be: prOVided, however, that in' all civil aod pro-
.STRASBURGER ".BEECHER.,
211,
eeedlrigs in whicb the1Jlli'ted not a party. transfers shall no,t mil-de to tne circuit cO,urtsof ,the U nJ,ted, States, except JlP01l,3 w,ritten request of one of, the ,1I"rties to such actiop or pr{)ceedin'g, filedin the proper court, and. in the absence of such request,'suchcases shall be proceeded with in t,he proper state colirt." ' ' , ' Congress had the, power to provide for the transfer to the oourtsof the United States Of anf.cause of which such courts might have had jurisdiction, under the constitution of ,the United States, had they existed at the time 'Of the instittition, of the,saple, which were pending in the courts of the territory of Montana. This it sought to do under the above statute \ subject to the condition that in civil actions between private parties ilwritten request sl10uidbe made by oqe of the parties for a transfer. The general statute of the United States upon the subject of removal of causes from state courts'to the United States COUl·ts is not the one under which the defendant in this action sought's removal in the abo\'e case to this court. The provisions of the general statute, which requires a bond to be filed 'a!; one of conditions of removal, do not apply where a removal is sought under the above statute. ' Neither have the provision8 of the;general"statutein regard to the,time when the application or written requestshoold be made pertinency under the above 'statute. It is 'perhaps true th'at'thl3requ'es.t should bamade in a reasonable time. But what is a : 1 should sl1yif the application was made at any time before trial in the state court, there could' be no objectionbut that it hild been made in; season, unless by some unequivocal aci applyirig showed he acquiesced in the jurisdiction of the state court. I do hot think the signing of a stipUlation for a continuance in the state court would :be a waiver of the right to appeal to the jurisdiction of the United' States courts'. The, statute does not require that there should' bellnycertified, copy .ofthe records in the state courts filed in tile circuit' court. It cohtemplil.tes t1)at original pllpers in the case shall be transferre? to the United States court entitled to the jurisdiction thereof. It says: ".All the files, records, indictments, and proceedings relating to any such cause shall be transferred; to such circuit, district. and ,stlite: courts, under the statutes of Montana, and also 'under th'e general rules of the COmmon law pertaining W such matters, a judge who. previous to his elevation to the bench, was an llttortJej' for one' ohhe parties to an nction, cannot actin the trial of such action. This disqualification of the judge does not preclude him from!tnaking suchprelimillllry 'orders as are merely fonnal, and tend only to prepare the-case for trial, and he may perform what arame-rely roinisterialacts. Moses v. Julia'll, 84 Amer.Dec. 114, and note to same, 131. The action, of Judge HENRY in transferring this cause 'to the circuit cout'Hatl11otbeclassed as an act'prohibited either by the statute of Montana or the ,commorlAilw rule in such It is urged that he was eaIled ulJontoperf<irmtbejudicialfunction of determining whether the petitionfor a causew9.S SUfficient. This is not true. ' If the cause wa$ one ,of Whichthe circuit'CQurt might have had jurisdiction
212
FEDERAL REPORTER, vol. 44.
at the time the suit was commenced, had it existEd, then the petitibn, which must be classed as a written request, for the transfer of the cause from the state to the circuit court, would, of its own force, transfer the cause, and oust the state court of jurisdiction in the case. The court over which Judge HENRY presided could not determine as to whether the circuit court received jurisdiction or not upon the filing of the petition. That duty devolved upon the circuit court,and the state court would be bound by its determination in the matter. It may be true it might inspect the petition or written request, and determine, as far as the jurisdiction of his own court, as to whether it was ousted, subject to the power in the circuit court to finally settle the question by assuming or refusing jurisdiction. The point involved in considering the statute upon the transfer of causes from the state to the circuit conrtor district court of the United States has been determined in interpretingtbe ogous statute upon the subject of removals from a state 00U):'t to the circuit court of the United States. , In the case of Kern v. Huidekoper, 103 U. S. 490, the Supreme court of the United States uses this language: ' "If the cause is removable, and the statute for its removal. has, been plied with, no order of the state court for its removal is necesl;lllfY, tQ:confer of 'such ordEjlr jurisdiction in the court of the United States, and no can prevent that jurisdiction from attaching." , , , In the case,of Railway Co. v. Dunn, 122 U. S. 513,7 Sup,CtrRep. l262, the supreme court held that it is a question for the court in such cases to determine whether it has jurisdiction or: not, and, that its determination is binding on the state court untilreversed,'Judge Dillon, in his work on Removal of Causes, (5th Ed. § 147,) says: ,the !luit be"Upon the filing of the petition and bond required by ing removable, the jurisdiction of the absolutely of the circuit court immediately attaches in advance of the tiling in the latter ' . of the transcript from the former." In section 143, Id., the same rule is expressed in this lang,uage: "If the record discloses a removable cause, and thl:! other conditions havll been complied with, the jurisdiction of the state court ceases and that of the federal court attaches without any further pl'Oceedings. and for all subsequent purposes." In the statute I been considering there is nothing which gives the state court any power to mak.e any order as to the transfer of a cause. If the cause is one of which the circuit court would have had jurisdiction at the time it was instituted, had it existed, the filing of the proper written request would transfer it to this court without any action on the part of the court over which Judge HENRY presided. It cannot be said, then, that any action on the part of that court has anything to do with the determination of the jurisdiction of this court. The order thereof did not give this court jurisdiction. The disability under which the judge thereof rested has nothing to do with the jurisdiction of this court. Hence the objection that the judge in the state court was disqualified from acting in this case has no force in this.case in ·.
STRASBURGER V, BEECHER·.
Concerning proposition maintained by plaintiffs, that tbeysholl1d have had notice of the application of defendant for a transfer of the cause, I would say there is nothing in the statute which requires this. Again I would refer to the ruling upon the analogous statute for the removal of causes from the state to the United States courts. In the case of Fisk v. Railroad Co., 8 Blatchf. 247, Justice NELSON says: "The learned counsel for the plaintiff seems to sllppose that the solicitor is entitled to notice of the time and place of the presenting of the petition. But this is an error. The act provides no such practice, and it is otherwise ·under all the preVious statutes prOViding for removals."
As no order is required of the state court for the transfer of ,a cause, and as its action in the matter does not affect the transfer inllny WltY, there can be no object in requiring a notice of the application or written' request for the There Can be no heaJ<ipg upon this request. This brings ,me to the consideration of the important point as, to; whether this is a case of which the circuit court would bave diction had it existed when the suit was The pe,tition.alleges that at the tim13 this sujt was inEititutedplaintiffs .0.11 Wl3rEl" and, still are, citizens of the state of ¥ontana, and tha't defennant ;WaS, tlnd still is, a citizep pUhe state of Minnesota. A, court is not obliged to, lieve an impoj>sH)ility, even if preSented to it jn,'a sworn p.etWon, This, suit was instit1;1ted, according to tlle files in i,he case, 01) the,Hthday of May, 1887. At that time M(mtana was not one of the .states in the; national Union. ,It was a territory of the United States., It has .been repeatedly held that,when the Jurisdiction ofa United SJ:ateseQllrt;depends upon the fact of citizenship, the fact that one of the parties is a dtizen of a state, and the other of a territory, will notgivEl such CPurtSi jurisdiction. Oorporatiern ofNw Orleansv. Winter, 1 Whoot.,91jBarney, v. Baltimore Oi.ty, 6 Wall. 287. If the plaintiffl'll'esided within ,what are now the boundaries of the state o.f Montana when this suit wascQmmenced, they, were,properly speaking, perhaps,citizens of the United States residing in the territory of Montana. If they were citizens of any; state, it does not Certain it is they were not then citizens of the' state of Montana. ,'l'his court has acquired no jurisdiction by reason of the citizenship of the parties at the time the suit was to whether ,this c9u'rtwould of this cause by reason of : the present citizenship of the parties, I am not 'called upon to decide. It may be that eno1,lgh is stated in the petition, as far as citizenship, is a removal under thl;l general statute, provi<:iing for ·concerned, to, the removal of causes from the state to the United States courts. Whether tllat applies. I am not now prepared tosny. But the defendant has filed in this case the bond requiredunderthatstatute as a condition' Qf reiDoval, and the request for femoval was based upon tll;!/.t:stat1,lte. As to this suit, clearly of opinion that, it is one the laws of the,United States. It is a teq jp: pR-:rsua.Ilceto the p'f, oOhe; · :suit vised Statutes of the Umted States. See Frank G. &: S. M. Co. v. Lari'Ylt M. &: S. Co., 8 Fed. Rep. 724. One of the objects of such an action is J
214
FEDERAL REPORTER,
voL 44.
to determine who is entitled to a patent to the premises in dispute. The judgment is .filed in' the United States land-office on the determination of the action.. To some extent the United States is a party to the action .. See Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. Rep. 301. This decision must be based ripon the theory, it appears to me, that the action, pursuant to an adverse claim, has for one of its objects the determination as to whether either party has divested the United States of the possessory title to the premises in dispute. The case of Ttafton v. Nougues, 4 Sawy. 178, is not in point That was not an action in pursuance to the provisions of section 2326, Rev. St. U. S. There is, however,a more serious objection to the jurisdiction of this court presented. In a Case such as this, the amount involved must exceed $500, and haps $2,000. The petition states that the property in dispute is worth over $5,000. This must be taken as an estimate of the value of the property at the dateof the verification of the petition, and not at the date when the suit was commenced. It should appear in the record somewhere that the value of the property in controversy 'Was sufficient to give the circuit court jurisdiction at the time suit was instituted. At the time the suit was instituted, the cirouit court had jurisdiction of causes in which the amount in controversy exceeded $500. Whether the circuit court can now take jurisdiction unless the property· exceeds in value the $2,000, in cases like· this coming from a territorial court, it is not necessary to determine. But must be decided whether; at the time this suit was commenced, the circuit court of the United States for the district of Montana would, had it been in existence, have had jurisdiction of this cause. That it would have had such jurisdiction must appear affirmatively in the record. In the case of Water 00. v. Keyes, 96 U. S.199, thesupremeeourt, speaking through Chief Justice WAITE, says: "It is well· setUed that in the courts of the United States the sppcial facts necessary for jurisdiction must in some form appear in the record of suit, and that the right of removal from the state court to the United States courts is statutory. A' suit cOlllmpnced in a state court must remain. there until caust' is shown, under some act of congress, for its transfer·. The record of the state court, which includes the petition for removal, should be in such a condition when the removal takes place as to show jurisdiction in the court in which it goes. If it is not, and the omission is notafterwarus supplied. the sujt must be remanded." The above remarks are applicable to this case. The fact that the property ill dispute may be worth over 85,000 on the 4th day of February, 1890, would not show that the property was worth that amount in 1887, when the action was commenced. The value of mining property fluctuates as much or more than any other kind of property. Hence the statement in the petition of the value of the prop-Jrty in dispute is not sufficient to show that this court, had it existed at the time the suit was commenced, would have had jurisdiction of this cause. For this reaBon, this Ciluse mUst be remanded to the state court. and it is BOordered.
ONiTEDSTATES tI.LYNDB.··.
215
UNITED STATEs .". LYNDE , I
dal.
(Oircuit Oourt, D.Montana. June:80,1890.) , COURTS:"-A.DM,ISSION OF NEW STATES-TIU.NSFERS FROM -CASE PENDING OJ.( APPEAL.
'. . Act. Cong.li'eb. 188\ljBdmitting Montana as a state, provided that the United States circuit and district courts estabHshed by that ,act should be the successors of the supreme and district courts of the territory in respect of all then pending in the territorial of which sUQh federal courts. would have had Jurisdiction had they been in existence. Section 28 further provides that" no :writ"action, indictmenticaus6, or proceeding now pending, or that prior to the admission" of Montana" shalll:!$,pelld,ing,in allY,tllrri,tor,i,a1 court", sh"a"ll abate b,y th,,e admission of such state into the UnioD,but th." same shall lie transferred and procee4ed with" iB the proper federal cOurt. H6W, that the circuit court has jurisdiction to review such a case, whichiWa.$· pending on appeal in the territorial supreme court when the act was passed. ' . .
COURTS
At Law.. On motioIl,to EtbertD. S.Atty. . ' & Luce, for detepdallta.' , .... ,,' "
.
.,.:;' "I,.
KNoWLES,J. ,This, actioR !was', pending in: ,the BUpretne oourt, of Montana" on appeal' from the'district court of Gallatin county, when .... Theabt tlOngtess Montana: 'pecame astatejn tl'uf February ,22. 1889, (see'U. providing fot}lie .adrnissi90 1t!onI:!iO!l, arid certlii,n other territo/:ies into the l:Jnion, contains the, fullowingproyil;lion: " That i,n respect to all cases, proceedings, :Bnd matters now' pending in 'the !Supreme or; district courts of either oftha territories mentioned in this act at the time of the admission into the {Jnion of 'either of the'stateslDentioned ill this .act, and ,arising within the limits'of any such state, whereof, ;the circuit ()l' district coutts,bythis act,establislJed might have had jurisdiction, under the laws of the United States, had such courts existed at the time of the comof, Bu,ch di!ltl:'ict coprh succes8.0l's of saId and dlstnqt courts. of saId terntory." TbeUnited States. is the party plaintiff, and the amount involved, BC:the allegations: of the pomplaint. is $106,000. This court, had it existed at the time this suit was brought, would have'hadjurisdiction ()f the satr.'. ' St,.Ma.rch, 3; ,1887,,: 0.373, § 1 j (24 St. 552,}8.scorrectad by St. Aug. 13, 1888, (25 St. 434.) .' The defendants move to dismiss the appeal in this cause because this court has no jurisdiction to hear the appeal pending in the supreme eourt of Montana territory at the date Montana became a state in the Union. The above statute, relatihgto the admission of Montana and ()ther states into the Union, also provides, in said secti?Q 23: "And aU "records,' and proceedingstelaling to any such cases shall be transferred to. such circuit, district, and, stat.e courts, reand, the same shall be proceeded with therein in due course of law; but no writ, action, i.ndictment; cause, orproceedlng now pending. or that in thisQ,ctshiMl be pendprior to tb.e admission of any iug. ipllrlyterritorialcqqrt; i'p)Jnyof the mentil>ned. in. this act, .shall abate by the admissioDofany such state into the UnioD.butthe same
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of