MUBRAY'V.B:tUE13IRD MIN.

co.

387

structionof some ptovision' of thecomititution, lllws, treaties of the United case, in such States, and the aiJ>plicationtheretlf totbe sense that the rulingth,UBW;I,Qe willmateriaHy' fl:lfect ,the conclusion l'eached upon the controversy between adversary parties to tl1e'Jitigation. Unlesp from the record it clearly appears that the federal question must be met and decided before the issue or issues in the particular cause can be finally disposed of, it cannot be said that the matter in dispute arises under the constitution or laws of the United States, Within the meaning of the

A decision by Justice BREWER in the case of Cheesman v. Shreve, 37 Fed. Rep. 36; in a .casevfiry:similar to the bne at bSI',has been cited as an authority supporting the opposite contention. From the brief report of the facts conSidered by the court ill that case'! am not able to say whether it conflicts with the oft-:repeated decisions of, Judge SAWYER or, l1Qt; but, even if. it does, I shouLd feel bound to give greater weight to the decisions of the whoi'ifnowpresent,w()uld be entitled to and acyord ii1g )g"wnose p,pinion the judgment herein would be entered, even if I should hold to the contrary. Let a judgment be entered herein sustaining thedtli:nurrer, and dis-' missing the case for want of jurisdiction.

MURRAY

1.'.

BLUEBIRD MIN. Co., Limited.

'Oourt, D. Montana. February 4, 1891.)

TRAN8FBR OF CAUSIlS FROM TIlRRlTORIAL COURTS.

A written request to transfer a cause which was pending in a territorial court 1;0 the' United- States circuit court for tbe district of Montana, not filed until after the . parties bave voluntarily appeared in a state court and contested a motion in the case, and after compHance with an order made by the state court, is too late to be eifective in transferring the cause to the circuit court. (SylLabU8 by th6 OO'Urt.)

defendant.

In Equity. Wm. Scailmt and F. w.eole, for plaintiff. Vaik Wolcott, W. JVo Dixon, M. Kirkpatrick, and Forbis

Fbrbis, for

HANFoRD,J. This casa is in all material respects similar to the case of Murray v. Mining Co., ante, 385, Uust disposed of,) and mUllt takB the same' course. True, it is contended that the facts are different £01 that the plaintiff, upon: 'Whose petition the order; to transfer the case was made, was not the'IDoving party in any other proceeding in the state court. The record shows, however, that he ·did voluntarily appear in the state court, and resist a motion to rE'quire hifu' to give additional security against damages' hy reason of 'an' ,injunctiOti granted by the territorial court; and that in obedience to the order of the state court he did aftel'Wsrds file therein ana.dditional bond: . Upon familiar principles, by thus voluntarily appearing and contesting a point in thesta:tecourt,

388

,FEDERAL REPORTER"

vol. 45.

to its jurisdiction of his person, and, as there the plaintiff has can be no question as to the jurisdiction of that court of thesubjecf..ft'llltter, I am bound to hold that full and perfect jurisdiction in the state court had attached before the filing of any written request to transfer the cause to this court.

HLUEBIRD

MIN. Co., Limited,

'II. MURRAY

et ale

(CVrcutt· Court, D. Montana. February 4, 1891.),
RBMOVAL OJ' CAUSES-Tiu.NSFBR FROM TERR1TORIAL COURTS.

Th,'e.t.went.,y-third Section of the act of congress, providing for the admission of Mont,ana and other territories into the provides for the direct transfer from the territorial courts of causes pending therein to the successors of said courts, and d'oes' not authorize the removBI1nlder any oIroumstances of a oause from a state oourt to a United Statea cirouit court. (S'S/Ua,bU8 b1I the Court.)
, ... i ..

Vaile &: Wolcott, W. W. Dixon, M. KirTcpatrick, and Forbis &: Forbis, for
plaintiff. Wm. Scallon and F. W. (Jole, for defendants.
HANFORD, J. Upon' amotion tOl'emand this cause to the district court for the second judicial district of the state of Montana, counsel have with and ability argued the questions as'to whether this case is one arising under the constitution and laws of the United States, and whether, considering its origin and previous history, it is a case of . which this court can fake jurisdiction. I am constrained to decide that the court is without jurisdiction, and to remand the cause to the state court, which in my opinion is the only court having, at the present time, power to take cognizance of it; and I do so without considering the subject of the controversy. The case was commenced in September, 1889,'in a, district, (lourt of the territory of Montana, and the plel/-dings were m.adecomplete in tpat coUrt. After the state government of Montana had become operative, the defendants made an application to the district court of the second judicial district of the stl;lteufor relief fz:om the 1:?inding obligation of a restraining order granted by territorialcqurt, which application, after a hearing of affidavits and, argUl:pents in behalf of the parties ,on both sides, was granted, and from that order the plaintiff appealed to the supreme court of the state. The defendants appeared in the SUpreme court, and moved to dismiss the appeal, not on the ground that the district court had not acquired jurisdiction of the cause i.n due course of procedure: as GeS80r of the territorial; court, solely- on the grounds (1) that the supreme court had no jurisliiction of the appealot case; (2) that the orQer sought to be from was not appeal/lble;and(3) that no exception. was pr<,ler, and there no bill of exception:!
; .. -, .· · _, ." . · .i>..'

In Equity.