SARGENT V. KINDRED.
485
when the appeals have each been perfected, and the rights of each litigant have in this respect been secured, then it will be for this court to determine whether it will allow a hearing before it until the question of jurisdiction has been adjudicated by the supreme court. Entertaining these views, we hold that this court is not without jurisdiction in the case, and the motion to dismiss is therefore overruled, at cost of the defendant in error, and the cause will be continued awaiting the decision of the supreme court upon the question of jurisdiction.
SARGENT 11. KINDRED,
(two cases.)
'(Oircw£t Oourt, D. North Dakota. March 8, 1892. L ADMISSION Oll'
The proviso to the enabling act of February 22, 1889, (25 St. 0. 180, 528,) admitting North Dakota., South Dakota, Montana, and Washington into the Union, that transfers of actions pending in the territorial courts shall not be made to the federal courts except upon written request of one of the parties filed in the proper court, and. in the absence of such request, such cases shall be proceeded with in the proper state court, was intended to permit parties to proceed in the state conrts in all cases where such courts have concnrrent jurisdiction, nnless one of the parties invoked the jurisdiction of the federal courts in cases of a federal charscter. The "proper court" in which to file a request for a transfer is the court where the files and records of the case are found at the time the request is to be filed.
Oll' CAUSES.
2.
SAME-ApPLICA.TION.
8.
SAME-TIME OJ!' MAKING.
The request for a transfer cannot be filed at any time before trial, but must be made before the party making the request h,as voluntarily and actively invoked the jurisdiction of the state court. Defendant, by submitting to the state court a motion for continuance, and an order setting tlul cause for trial at a followlni term, loses his right of transfer.
At Law. Two actions. Motion to remand. W. F. Ball, for plaintiff. Seth Ne:wman, for defendant. Before THOMAS, District Judge.
Granted.
THOMAs, District Judge. At the time the state of North Dakota was admitted into the Union, on the 2d day of November, 1889, these two actions at law were pending and at issue between the above-named parties in the territorial district court in and for Cass county, D. T. Both actions were regularly upon the jury calendar for trial in the state court. The district court in and for Cass county, state of North Dakota, became the successor of said territorial court for the trial and tion of such cases as were properly transferable to that court by opera'tion of law. From the transcript of these cases, filed in this court, it appears that both of the cases were properly upon the jury calendar for trial in the state court after the admission of the state, and that at the June term of the state court for 1890 the defendant made a motion in each case, based upon affidavits, for continuance over that and to the
486
FEDER;!.J.
vol. 49.
term. It is admitted that the motions were resisted by ,thl);plaintiff, but notwithstanding the court granted the moti<)l1s, and deJ!ed'each case to stand on the peremptory call on the first day of the next term. It also appears that at the next term, and before the com.ll.'1encementof the trial, in each case, the defendant filed in open court a request in writing, in due form, for a transJer of said cases to this court, a transcript of the record in each case having been filed in this court, showing that at the time of the commencement of these actions the plaintiff was a citizen of the state of Illinois, and at the time of the filing of said request by the delimdant was a citizen of Illinois; that the defendant, Charles F. Kindred, at the time of the commencement of these actions. was a citizen of the state of Minnesota, and at the time of filing the request was a citizen of the state of Pennsylvania; and that the matter in dispute in each case exceeds the sum of $2,000, as required by Rtatute. The plaintiff now moves to remand the cases to the state court, for the reason that this court has no jurisdiction of the actions, or either of them. The determination of this matter involves the construction of section 23, c. of the act of congress approved February 22,1889, entitled: "An act to provide for the division ofDllkota into two states; to enable the people of :North Dakota, Dakota, Montana, and Washington to form constitutions and state governments, and to be admitted into the Union on an equal footing with the original states; and to make donations of public lands to such states." Section 21 of said act provides for the creation and organization of the districta.nd circuit courts of the United States, and confers upon said courts,and the judges thereof, respectively! the same powers and jurisdictian as are possessed by the circuit and district courts and the judges of the United States courts. Section 22 provides for the disposition of cases pending on appeal or writ of error in the supreme court of the United States and in the supreme court of the territory, and for the prosecution of appeals and writs of error from judgments of the supreme court of the territory rendered prior to the admission of the state. Section 23 provides that the circuit and district courts of the United States, respectively, shall be the successors of the supreme court and district courts of the territory in all cases, proceedings, and matters pending in the supreme or district courts of the territory at the time of the admission of the state into the Union, and arising within the limits of said state, whereof said United States courts might have had jurisdiction under the laws of, the United States, bad such courts existed at the time of the commencement of such cases. It also provides, in,the second clause of said section 23, that the courts created by the state of North Dakota shall be the successors of the supreme anci district territorial courts in respect ,to all other and matters pending in the supreme or district courts of the territory at the time of the admission of the state, and arising within the limits of said proposed state. It also provides that all files, records, indictments, and proceedings relative to any such case shall be transferred to said circuit, district, and state
SARGENT ". KINDRED.
487
courts, respectively, and the same shall he proceeded with therein in due course of law. It also provides that no writ, action, indictment, case, or proceeding pending at the time of the admission .of the state shall abate by such admission. Then comes the proviso, which reads ft.S follows: "Provided, however, that in all civil actions, cases, and proceedings in which the Uoited States is not a party, transfers shall not be made to the circuit and district conrts of the United States except upon the written request of one of the parties to such action or proceeding, filed in the proper court; and. in the absence of such request, such cases shall be proceeded with in the proper state court." This proviso is peculiar to this enabling act. I do not find it, or a similar provision, in any other enabling act. In order to ascertain the meaning of congress in adding this proviso, we may look to the defects, if any, in other acts, relative to the admission of states. and the remedy proposed. A late expression of the law of congress relating to the disposition of pending cases in territorial courts, on the admission of the territory into the Union, is found in the act of congress of June 26, 1876, in respect to the administration of justice in Colorado. 19 St. p. 61. That act was the most perfect and specific, relating to the disposition of pending cases, of any that had been passed by congress up to that time. The enabling act for the admission of this state, with the other states named therein, relative to the administration of justice and the disposition of pending cases at the time of the admission of the state, is modeledafter the Colorado act of June 26, 1876, but is more specific in its terms. Section 8 of the Colorado act was specific as to ihe disposition of cases of a federal character, and is substantially the same as the first clause of our section 23. Upon a careful reading of our section 23, it will be found that section 8 of the Colorado act is embodied in it, in terms, and in addition specific provision is made in said section 23 for the disposition of cases not of a federal character, and also specific provisions for the purpose of preventing the abatement of any writ, action, indictment, case, or proceeding at the time of admission. Nothing in section 23 of our act, down to the proviso, is left for cons.truction, as was the case in the Colorado act relative to cases not of a federal character, and the survival of actions; Section 23, together with sections 21 and 22, embodies all of the provisions of the Colorado act of June 26, ,1876, and expresses in clear terms provisions relative to pending cases not of a federal character, which seem to have been implied and leltto the construction of the courts in the Colorado and prior enabling acts.· Benner v. Porter, 9 How. 235; Ameav. Railway Co., 4 Dill. 252. What was the purpose of congress in adding to section 23 the proviso above quoted? By the Colorado act of June 26, 1876, all cases of a federal character were at once, on the admission of the state, transferred to the United States Cases of a federal character may be such by reason of parties, as where the United States or federal corporations are a party, or because they arise under the constitution or laws of·the United States, or because of citizenship, without respect to subject-matter.
FEDER"-,.,, REPORTER,
A1/te8 v. Rat7,way Co., supra. If the federal character of the case appeared the pleadings or record, under the Colorado act, no discretion was left to the parties as to the tribunal to which they would submit pending cases, although .both parties might desire to have their cases tried in the state court, where such court had concurrent jurisdiction with the federal courts. The purpose congress in adding this proviso to section 23 was to remedy this' defect, and to permit parties to proceed in the state courts, in all cases where such courts have concurrent jurisdiction, unless one of the parties invoked the jurisdiction of the federal courts incases ofa federal character. The fact, judicially declared. of an unconditional admission of a territory as a state, and the erection of federal courtl!therein, and the extension of the laws of the United States over the: Sl1me, is, ipso facto, to extinguish the territorial government, and with it the terr.itorial courts of the general government. Benner v. Porter, S1/,praj Afne8v.Railway Co., supra. A provisio,n for the transfer of pending cases in the territorial courts was therefore necessary, uponthe admission of the state. Congress made such a. provision in and by sections 21-23 of the enabling act for the admission of this state, and the state of North Dakota consented to receive jurisdiction of all cases of which its courts have exclusive and concurrent jurisdiction under its constitution and laws. Had this court existed at the time of the commencement of these actions, it might have had jurisdiction thereof; the plaintiff being a citizen of Ulinois and the defendant then a citizen of Minnesota, the matter in dispute in each case exceeding $2,000. FaleS v. Railway Co., 32 Fed. Rep. 673; Amsinck v. Balderston, 41 Fed. Rep. 641; Burck v. Taylor, 39 Fed. Rep. 581: KansaB Oityc!c T. R. Co. v. Interstate Lumber Co., 37 .Fed.Rep. 3. They were proper cases to transfer to this court upon the filing of a written request by either party, in due form, in the p,-"oper court. ' .Two questions are involved in .these motions: First, were the requests filed in the proper court? and, second, were they filed in time? As there is no express provision of the statute defining the proper court, the meanipg must be determined by construction, in view of the other provisions of the statute. I am of the opinion that the "proper court" is that court' where the files and records of the case are found at the time the request is to be filed; that court whose clerk has the custody of the files and rt:Gords, and who can transfer the same to the federal court; and that the requests in this case were filed in the proper court." It was evidently, the intention of congress to allow either party to an action of a federal. character to transfer the case to the United States court upon compliance with the statute; and it must be presumed. in the absence of any expressed intention to the contrary t .that congress intended that parties should have a,reasonable time and opportunity to file such requests. !fa party ia.compelled to file such request in the territorial court, or,upoD failing. to dQ so, submit to the jurisdiction of the state eourt which is made the· successor of the territorial court, his time is unreasonably and ,unnecessarily limited,whereas, if he may file his request in the state 'court, he. is afforded. a fair and reasonable time and oppor..: (l
SARGENT
v.
KINDRED.
489
tunity of making his election between the state and federal courts. This view seems reasonable, and consistent with the spirit and reason of the statute, and is adopted by this court, in harmony with the implied opinion in Ames v. Railway 00., BUpra, and the decisions in Carr v. Fife, 44 Fed. Rep. 713; Kenyon v. Knipe, 46 Fed. Rep. 309. Were the requests in these cases filed in time? There is no express limitation of the time in the proviso or in the statute. The statutes reI. ative to the removal of causes from the state courts are not applicable to this class of transfers. By the enabling act the survival and disposi. tion of all cases pending in the territorial courts were provided for. The laws of the United States were given force and effect immediately upon the admission of the state, and the federal courts created and established. By the constitution of the state of North Dakota, such courts were created and established. The laws ofthe territory were adopted as the laws of the state, 80 faras applicable, and the consent of the state given to receive arid accept jurisdiction of pending cases by these courts, to the extent of their jurisdiction. By the operation oflaw, these cases were immediately tranSferred to the state district courtin and for Cass county; and in the absence of a request, duly filed, to transfer the same to this court, by either party, that court had jurisdiction to proceed and determine. The federal character of these cases does not appear in the pleading made and filed in the territorial court, or as they were in the state court, prior tothe filing of the request to transfer to this court. But, as now appears by the transcript of the record filed in this court, they are of a federal character., and this had jurisdiction thereof, if it had existed when these court actions were commenced. It was proper to make clear and show by written requests, as was done in both of these cases, that they were in fact of a federal character. Kenyon v. Knipe, supra. But the question recurs, when must the request be filed? Can it be filed at any time before the trial, as contended by defendant's attorney, although the party so filing the request has, prior thereto, voluntarily and actively invoked the jurisdiction of the state court in the action? I cannot accept this contention of the learned counsel for the defendant. At the time of the admission of the state, this defendant had the right to submit to the jurisdiction of the state court, or file a proper request and have the cases transferred to this court; but he could not do both. He was then placed in a position where he must, before taking active steps in these actions, determine to which tribunal he would submit. Silence or passive inaction in such cases, for a reasonable time, perhaps, would not have estopped him; but any decisive action by which he actively invoked the jurisdiction of the state court, with knowledge of his rights and of thtl fact, must necessarily have determined his election to remain in and submit to the jurisdiction of that court. This well-recognized common-law prin. ciple is applicable in the construction of the statute in question, in relation to the point here involved. The case of Amesv. Ral1way 00., supra, construing the Colorado act of June 26, 1876, decided by Judge DILLON, and concurred in by Justice MILLER, is in point. On June 26, 1876, a bill was filed in the territorial court of Colorado. by
490
REPORTER,
vol. 49·
in which it.is pendhij{ may rightfully. proceed therein after the admissiun of lel\st until it ill Ilhown to the court that it is. one of federal· cognizan,ce. :In the present. cause the pleadings did not.show that it was one of fede'ral cban\ctJ'r, as there was no averment in the bill of complaint of the citizenship of plaintiffs. As the cause was in the court, and the court was in existence; 'andthe federal character of the cause did not appear. it follows that the COllrthad jurisdiction to act thereinafter the admission of the state. It is contended by the defendant company that the complainants have elected to in the state court, and that, having done so,they are bound thereby, in virtue of the common-law principle. that .an electionop.ce deliberately made is binding and irreversible. .In otlier words, after the 1st day of August, the plaintiffs could have taken steps to show the federal character of the cause, and arrested all further action of that court. Instead of doing this, they invoked the continued exercise of -the jurisdiction and powers of that court, and obtained in' August an order appointing, a receivel', and subsequently procured an order f()r 8 writ of assistance, which was issued. After having, with knowledge of.all the facts .as to jurisdiction. done this, can they afterwards change tl)eforum? .<\.nd, if so, what limitation in point of time exists. and can it be exercised down to the time of final bearing? .It is my jUdgment, in a case whose federal character does not appear of I'ecord, that the party who, With knowledge of all the facts. wishes the case to go to the federal cOurt, under section 8 of the act of June 26, 1876, must take his.election before Voluntarily invoking the actionaud power of the courk,otllerwise. he is concluded from aftel'Wards E'lectlng to re,veal its federal character, and. have a transfer byvir,tue of the The case, by his consent and action, has 'beCQDie one l:le!cmging to the local arid can onl,r be removed therefrom, 'if at nll,under the removal acts applicable generally to the transfer of causes from the state to.thefederal courts. It maybe true that the plaintiff can,1ikeother have the bel)ellt of I'.emoval
..t\p,1es et ·al. I for thecforeclmmre of a mortgage aHd ,the appointment of a r¢peiver. An answer by the defendant and a replication by the plaintiffs were also filed in thEl territorial court. The motion was made in the territorial.court for the appointment of a receiver, which was resisted. The motion was pending and undecided when the Mate was admitted, on the .lst dlty ofAugust; 1876, and was decided by the state court early in August,::ll;nd a receiver appointed by that court. 'J:'he receiver was unable to.Qptain possession of the property; and the state court, on applicatio1) ()(the plaintiffs, Qrdered out a writ of assistance to put the receivel' inpo!!!lession. The pleadings did.not show citizenship of the plaintiffs, and fO,r.that reason it did not appear to be a case of federal character. On October 24, 1876, the plaintiffs caused to be filed with the clerk of the state court an affidavit showing citizenship of plaintiffs, .and the solicitors for plaintiffs gave notice to the clerk that the case was transferred to the federal court; and it would appear from the opinion of Judge DILLON that the .files and records were transferred to the federal court. A motionto :docketthe case iil the federal court wae made ·before Judge DILLON. ,The cpurt dismissed the motionup.on tbeground that the plaintiffs had, .hy invoking· the action of the state court in obtaining an order fo1\ the appointment of a receiver, and .subsequently procuring a writ of assistapce, elected to remain in .the state court,and thatsuoh election On this point Judge :Drr,LoN said: , was "U the federal:charaeter of a pending cauSe does not thus appear, the court
acts, If he can bring his case within-them; but it is not necessary to deter. mine this point. 'fhe result of thpse views is that, as the plaintiffs. after the admission of the state. not only voluntarily submitted to the action of the local court, but ir,voked it and obtained it, they could not afterwards transfer the cause on affidavits filed with the clerk of that court. in the manuer here attempted."
I am unable to distinguish this case, on principle, from the cases at bal'. In that case the plaintiffs had a right to show the federal character of their case before they invoked the jurisdiction of the state court, and have the files and records transferred to the United States circuit court. But they made their election to remain in the state court, and lost the right to invoke .the jurisdiction of the federal court by actively invoking the jurisdiction of the state court. If the pleadings in that case had shown that it was a case of federal character, it would have been transferred to the federal court by operation of law, but, because the pleadings failed to show the federal character of the case, it went to the state court; and Judge DILLON holds that the state court had jurisdiction of the case. If the plaintiffs in that case had shown that the case was of a federal character in the state court, berore actively invoking the jurisdiction of that court, they might have had their case transferred to the federal courts; or in other words, upon showing in the state court that the case was in fact of a federal character, the case would have gone to the federal court. There is no difference in principle between that case, upon the facts disclosed, and the case at bar. Plaintiffs had an election to remain in· the state court, or make a proper showing and invoke the jurisdiction of the federal court. The proviso in section 23 of our act makes specific provisions for, not only ccases of that character, but of all cases where the state court has concurrent jurisdiction with the federal court; and either party may make, by virtue of that proviso, in the stute court, the proper showing before actively invoking the jurisdiction of the state court. and have his case transferred to the federal court, if it is in fact of a federal character, and request the state court to transfer it to the federal court. In the case at bar the defendant had the right to make the proper showing, and file his request and have these cases transferred to this court. He ejected to remain in the state court, and lost the right of transfer, by actively invoking the jurisdiction of the state court, knowing his ri!!;hts and the facts, and by submitting to the state court the motions for a continuance at the June term for 1890, and submitting to the order made by that court for a continuance and the setting of the cases for trial upon the peremptory call at the following term of that court. . These views are in accord with the following decisions: Wingv. way Co., (8. D.) 47 N. W. Rep. 530; Murray v· .Mining Co., 45 Fed. Rep. 387. It follows that both of these cases must be remanded to the state court; and it is accordingly so ordered. .
DDEB.A.L BEPOR1EB,
HINCHMAN tl. KELLEY et
01.
(oCrcuit Oourt, D. Wa8Mngton, W. D. February 16,1899.) IIlQUITT-J'URISDIOTION-SUIT TO DIIOLARII TRUST,'
.A. .suit in equity to declare a trust, not evidenced by any and to establish a claim of title to land, by a vendee of the cestui que trust of a vendee named in an executory contract to convey the land, commenoed after the death of both parties to said contract, cannot be maintained; because (1) sufficient evidence to prove the averments of the bill as to the interest of the plaintiff's grantor must necessarily be lacking; (2) eqUity will not aid one who bUyS a lawsuit on iiYeculation.
In Equity. On demurrer to bill. Sustained. (J; 8. Jtbgg, for plaintiff. GalU8ha Pars07l8 and J. O. ·for.·defendants· . lhNFolm, District Judge. I haveoonsidered the demurrer to the bill in this caSe, and I think it is well taken. .It is difficult to determine from' the bill the nature of the suit. ; The averments are such as are ordinarilyiframed to support a bill for :the specific performance of a contract,otto declare the existence of a .trust in regard to the ownership of propertYj but the prayer asks for no such relief. The prayer is appropriate to a bill of peace, or a bill to remove a cloud from the title to real estate. I am satisfied, however, upon consideration of the bill as a whole, that the complainant is not entitled to either form of relief. The Jlrayeroannot be granted, because the bill shows affirmatively that the eomplainant is not the owner of the legal title to the property which is thesubjoot of the suit. He has, therefore, no foundation for a suit in the nature of a bill of peace, and he has no title which can be clouded. Only the·, owner of the legal title can maintain a suit in equity for such relief, either according to the forms and rules of equity practice, or the Code procedure of this state. Formerly a suit could only be maintained by an owner who waR in possession, but now, under a statute of this state, a suit to determine adverse claims to real estate can be maintained If the property is not in the possession of anyone; but the plaintiff, to have a standing in court, must show that he has a legal title t9 the property. This bill sets forth as the foundation of the right which the complainant claims an executory contract for,the conveyance of the title to certain real estate, made in 1872, which contract was never performed. The vendor in the case has since diedj the persons whom the bill alleges the· reJllowners of the property, and for whom the vendor in the contract was a mere trustee1with power to sell, have diedj and the vendee n'amed in the contract has died. It is claimed that this vendee was also but an agent and trustee for another pady. There is in the bill no averment that any of the persons interested, while living, gave any information as to the existence of this secret trust, or did any act· to perpetuate evidence of the existence of such a trust; and it is only a vendee of the cestui qu6 trust, who now appears as complainant, asking to have the trust declared,-a trust that is not evidenced by any writing, and which could