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
·
of
FEDERAL REPORTER;
vol. 44.
shall be transferred and proceeded with in the proper'United States circuit, district, or state court, as the case may be." Previous to this clause in said section 23, it had been provided what should be the disposition of all cases of which the United States circuit and district courts would not have had jurisdiction had they existed at the time the same were commenced. It is provided, it will be seen, that these cases are to be proceeded with "in due course of law;" that they are not to" abate, " but are to "be transferred and proceeded with" in the proper court; that is, the court having jurisdiction of the same. There can be no doubt but that congress intended that these causes should be taken up as they were, and tried by the court having jurisdiction of the same. The same question as is here presented, and under a statute the same in terms, arose in the circuit court of the United States for the district of Colorado, in the case of Bates v. Payson, 4 Dill. 265. In deciding the same, MILLER, the circuit justice, said: "It is admitted that the case was one which might have been brought in a federal court, if such court had existed at the date of the commencement of the suit, as such was within the eighth section of the act. By that section this court is declared to be the successor of the supreme court of the territoryas to all such cases, with power to proceed therein in due course of law.' This means that this court may do all that was left undone by the snpreme court of the territory. The cause was pending in that court for review, and we may proceed as that court would have proceeded if it had retained the case. The way in which, under the territorial statute, the cause was taken to the supreme court is not material to be considered. The act of congress applies to all cases of a federal character pending in that court at the 'late of the admission of the state, and it matters not whether they were removed into that court by vrrit of error or appeal. If it were necessary to remand the cause to the state court. there would be a difficulty in disposing of it. but that was not required. Whether the judgment should be affirmed or reversed, we could enter the proper jUdgment here. and, if necessary. we could try the case again in this c o u r t . . . · " The interpretion of a statute almost word for word by one of such acknowledged ability and eminence has controlling weight with this court, and the interpretation given to that statute pertaining to Colorado will be adopted as the interpretation of the statute under consideration which pertains 10 Montana. The motion to dismiss the appeal in tbil:l cause is overruled.
In re
ALLIS.
(CircuU Court, E. D. Wisconsin. December ts. 1800.) DBPOBmOlfl-ORA.L INTERROGA.TORIES-PRACTICE. ,
Equity rule 67 prOVides that testimony may be taken under commission upon oral interrogatories, if the party desires it, and that "the examiner shall note all objections to questions" but shall not have the power of decision thereon; but the court shall have the power to deal with the costs of all incompetent, imlDe-terial. or irrelevant depositions, " etc.; and that, "in case of refusal of witnesses'to attend, to be 8worn,or to anllwef any quelltion, * * * the same practice shaU be'adopted as