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.

BLUEBiRD

MiN.

CO. V.

MuRRAY.

'389

in the record. This motion to dismiss was denied, ,s.nd,upon considerMion of the merits, the supreme court affirmed the order. Mining v. Murray, 9 Mont. 468,23 Pac. Rep. 1022. After this fendants,by petition to the said' district court, obtained an order from that court for the transfer of the case to this court. A certified copy of the last-mentioned' order, has' been filed herein, and a number of de:. tached papers have also been filed here, which I assume are thepapera in the oose, although they are not certified by any officer ofejther terri,;' torial or state court or this conrt, and there is no transcript of the record . of proceedings in the case. The facts recited have been gleaned' fro#} the uncertified papers referred to and from the unchallenged Rtatemerit$ of counsel in the argument before me. I do not intend to assert that any court <Jan lawfully prediclite a decision upon facts ascertained in this way, or to encourage a loose practice in this respectj but, as counsel for the parties have argued, upon an assumed state of facts, I prefer to r6!lt my deCision upon grounds otherthan the lack of information by an offi.:. cialcertificate. It is not even contended that the general laws of the United States providing for the removal of causes from the courts of a state to the United States circuit courts have been complied with in this instance, or that by virtue thereof this court has been invested with any jurisdiction c:if the parties'olthe subject-matter. Section 23 of the enabling act (25 m S. St. 683) is the only law relied upon to support the claim thafthe case has been brought within the jurisdiction of this court. A close reading of this statute, however, will necessarily lead to the conclusion that suchsnpport cannot be found there. This act clearly was intended to provida f6r the'succession to the power and jurisdiction ofthe courts of the-several territories which by the act were enabled to form' state lind enter the Union as states, and for the transfer of CaSed pending in said territorial courts to the courts respectively which sho,?-ld hecomesliecessors thereofjand it is equally clear that by the terms of the act eadhcase must be transferred direct from the territorialcourtiri which it was pending to the court which as to such case should be sue: cessor to such territorial court, and that, after the transfer so for shall bavebeen actually effected, no second"transfer ofthe easefrorn: the court which shall have acquired jurisdiction of it to any other court can, by virtue of any provision of said statute, be lawful. This act does not provide for nor authorize the removal of any cause from any state court to any national court under any circumstances whatever. It is true that the statute is somewhat difficult to understand and to execute, in that the United States circuit and distmct courts, which as to certain causes are made successors to the territorial courts, were not in time to assume actual jurisdiction instantly upon the extinction of the territorial courts; and no rule is prescribed as to the time within which the 'rritten request, required in such eases as this to transfer t4em to the national courts, must be filed, and the provision that such'request .m:ust .be filed ill the proper court is ambiguous. NevertheJess, when the object of the statute and all its provisions are considered,there

390

FEDERAL

vol. 45.

is little room far dift'eI:ences as t().itsimportallt requirements; for on,e ipirig there written case to whichtpe United SH'1es is nota party transferred ,1;0 court, or else it must l;>:C, proceeded with in a state court. :, It may1;Je assumed. that the peti. ti,onin this case the transfer to this sufficient as a written reas to form or substance, is specifically The proper court in to file the in my opinion, would be whatevercou.rt might, through its own oflicers, give effect to the by causing the papers:and record of the proceedings in the ,to be placed in the custody of .the officerfl of the proper circuit or 4fstrictcourt. In my opinion a request might have been properly filed in the territorial court during its existence; and, if so the clerk of suoh territorial court would have been in. duty bound to see that the papers and record, of the cause were in due time placed in the custody of the proper national court. On the other band, I have heretofore decided, ina case Carr v.Fife, 44 Fed. Rep. 713, that the request was properly filed in a state court which had never assumed or exercisedjuris<,liction of the cause, but,whose clerk had,hefore the organization of the national courts for the rlistrict.receivedactual possession of therecorqand papers pf the cause. 1 still hold to that opinion, and it is in harU\ony with the decision. made by Judge KNOWLES in the case of Strasburger. Beecher, 44 Fed. Rep..209. But, obviously, in whatever court the request may be, properly filed, to be effective it must be filed in time to guide the officers of the respective courts in the actual transfer of the case, and it is too lnte atter the fact of succession by a state court shall have actually occurred, by reason of such court having, with the knowledge and acquiescence of all the partie§,by ,a positive act assumed jurisdiction. For this reason, the request in this case was too late, and flot effectual to oust the state court of the jurisdiction which it had undoubtedly acquired. . This decision is not predicated upon the idea that by laches or any act there has been a waiver of any right by !lither party, but upon the principle that where a state court has lawfully acquired jurisdiction of a cause nQ transfer of that jurisdiction to a national court can be made otherwise thl,ln according to the provisions of a law authorizing it.

DUNTON

et aZ. v.

MUTH

et al.

(Oircuit' Court. D;Montana. February IS. 1891.) 1 RBMOVAL OJ!' CAUSES-CITIZE·NSHIP"':"'AOTIO.NIN TERRITORIAL COURT. In an action brought in a Montana territorial court, Where both defendants are oitizens the territory, and the two plaintiffs are respeotively citizens of a state and another territory, the admission of both territories as states will not make the suit a "controversy between oitizens of different states, " and removable under seo, tion 28 :M:ohtaJ,la enabling aot, providing that on written request aU cases pending in territorial courts shall be transferred to the federal circuit anddistriot courts atter admission, provided they would have had jurisdiction when the action had such CQurts existed.