ROSEKBAUM V. BOARD OF SUP'RS.
exception to this portion of the answer must therefore be sustained. The answer further alleges that accounts between complainant and defendants, concerning said mine, are unsettled, and that numerous suits are pending involving the title to the mine, and the rights and interests of its various owners. To these matters, also, exceptions have been filed. I overrule these exceptions. I do this for these reasons: This is an equitable proceeding. The mere fact of joint ownership does not give an equitable right to a partition. Seldom can a division of a mine be made. Generally partition must result . in a sale. To 8uch property there is an unknown value; and a chancellor may well require full information as to all the relations of the parties to the property before decreeing any partition which will practically result in dispossessing one of the parties entirely. I dt' not enlarge upon this matter, but simply notice it, to guard against any thought that partition is to follow as a legal right. When the facts are fully presented, I can the better determine whether partition ought equitably to be ordered, and, if 80, upon what terms.
(Oirouit Court, D. California. May 24, 1886.)
1. MANDAMUs-JURISDICTION OF TflE CmCUIT COURT-WHEN GIVEN.
The United States circuit court has no jurisdiction to entertain an application for a mandamulI, originally presented therein, except as ancillary to some other proceeding establishing the demand, and reducing' it to judgment. and in the nature of process for executing such judgment. Jurisdiction of a writ of mandamus cannot be conferred upon the United States circuit court by commencing the proceeding in, the state court. and then removing it to the United States circuit court, under the act of congress of 1875.
1, 2. .
SAME-JURISDICTION-REMOVAL FROM STNrE TO UNITED STATES COURTSCONSTRUCTION OF ACT OF CONGRESS OF 1875. 1, 2, 716.
8. SAME-ACT OF CONGRESS OF 1875,
A mandamu8 is not" a suit of a CIvil nature, at law or in equity," within the meaning of the act of congress of 1875. . 4. SAME-CODE CAL. §§ 1034, 1086. Under the California Code a mandamus is not regarded as an action at law or a suit in equity, in the ordinary sense in which those terms are used; but as a special proceeding to afford a remedy where there is not a plain, speedy, and adequate remedy "in the ordinary course of law."
SAWYER, J. This court has no jurisdiction to entertain an application for a mandamus, originally presented herein, except as ancillary to some other proceeding establishing the demand, and reducing it to
judgment, and in the nature of process for executing such judgment. Liebman v. San Prancisco, 24 Fed. Rep. 713-722; i.V1clntire v. Wood, 7 Cranell, 505; Bath Co. v. Amy, 13 Wall. 248; Graham v. Norton, 15 Wall. 428; County of Greene v. Daniel, 102 U. f::!. 195; Davenport v. Dodge Co., 1U5 U. S. 242. Can jurisdiction be conferred upon the court by commencing the proceeding in the state court, which has jurisdiction in this form of proceeding, and then removing it to this court under the act of 1875? I am satisfied that it cannot. The case of Claflin v. Commercial Ins. Co., 110 U. S. 89, S. C. 3 Sup. Ct. Rep. 507, relied on by petitioner, does not reach the case. In that case the decision was rested expressly on the ground that section 2 of the act of is broader than section 1, since it contains no such limitation, as to the right of an assignee to sue in the national courts, as is found in sect10n 1. In the case now under consideration, the language, "any suit of a <Jivil at law or in equity," in the second section, is no broader than the language, "all suits of a civil nature, at common law or in equity," in section 1. If, therefore, section 1 does not embrace this case, section 2, for like reasons, does not embrace it, and cannot give jurisdiction by removal. 'I'hat section 1 does not embrace the case is clear, from the cases already cited; otherwise the court would have jurisdiction as an original proceeding instituted in this court. Therefore, section 2 does not reach it, or authorize a removal. A mandamus is not "a suit of a civil nature, at law or in equity," within the meaning of the act. Jurisdiction to issue writs of mandamus is not derived from section 1 of the act of 1875, and it was not derived from the corresponding provisions of the act of being section 11 of that act. This jurisdiction rests upon the provisions of section 716, the section upon this point corresponding to section 14 of the act of 1789. This point is expressly settled by the supreme court in Bath Co. v. Amy, 13 Wall. 248. If not a suit of a civil nature, within the meaning of the act of 17'89, it cannot be one within the meaning of the same language in the act of 1875. A mandamus, therefore, is not a suit of a civil nature, within the mean.ing of any provision of the act of 1875, and is not removable under it. So, also, under the Code of Civil Procedure of California, a mandamus is not regarded as a "civil action," in the ord·inary sense of that term. "Remedies are divided into two classes: (1) Actions; (2) special proceedings." Code Civil hoc. 21. Sections 22 and 23 define these remedies: "An action is an ordinary proceeding in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Section 22. "Every other remedy is a special proceeding." See, also, sections 307,1063. A mandamus is defined by section 1034:, and it can only be issued "where there is not a plain, speedy, and adequate remedy in the ordiflary course of law." Section It is issued only upon affidavit.
ROSENBAUM V. BOARD Oli' SUP'RS.
Section 1087. Thus, under the California Code, a mandamus is not regarded ad an "action at law" or a "suit in equity," in the ordinary SGnse in which those terms are usea., but as a special proceeding, to afford a remedy where there is not a plain, speedy, and adequate remedy "in the ordinary course of law." Much less is it "an action at law or a suit in equity," within the provisions of either section of the act of congress of 1875, under which the courts have no jurisdiction of the writ, except wh.ere employed as ancillary to some other remedy, in the nature of an execution, to carry a judgment in some action into effect. It may well be doubted, also, whether the case is a suit "of a civil nature, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars," within the meaning of the removal act. It is not a suit to recover a judgment. There is no ad damnum clause in the petition, and no prayer for a money judgment. No ascertainment of value is sought or had. It is not a proceeding against the city of San Francisco, or any corporation or person alleged to be liable for any money demand whatever. It is merely a proceeding against certain officers personally, in their official capacity, who, it is alleged, refuse to discharge a public duty imposed upon them by law, for the purpose of setting them in motion,-a proceeding to compel them to act; to discharge an official duty. If the writ issues, it will of itself, alone, afford no remedy. When respondents act, only one step towards a remedy is made. The machinery is only started. If a tax is levied and raised, other actions may Le necessary to establish the right, and other proceedings by mandamus, against other officers, may be necessary to obtain a remedy. In Kurtz v. Moffitt, 115 U. S. 487, S. C. 6 Sup. Ct. Rep. 148, the supreme court, affirming the judgment of this court, held that a habeas corpus proceeding is not removable, the matter in dispute does not involve a money value of $500. The case of Stewart v. Virginia, 117 U. S. 613, S. C. 6 Sup. Ct. Rep. 922, also, appears to be directly in point on this question of money value. It appears to me, that the principle in these cases established is equally applicable to this case, and that it is not removable on that ground also. But neither proceeding is a suit at law, within the meaning of the act of 1875. The jurisdiction in habeas corpus cases is derived from section 751, Rev. St., and not from the sections conferring general jurisdiction. The case must be remanded to the state court, and it is so ordered. v.28F.noA-15
UNITED STATES v. EDDY and others.
(Oircuit OoUPi, No D. Ohio,
WRIT AND PROCESS-DIVISIONS OF NORTHERN DISTRICT OF OHIO-FILING PETITION AND ISSUE OF SUMMONS IN ONE DIVISION FOR THE OTHER.
Under the act (20 St. 101) dividing the Northern district of Ohio into an Eastern and Western division. with terms of court to be held at Cleveland and Toledo for these divisions, respectively, if an action is to be brought in the Western division, the petition should be filed in the clerk's office at Toledo before process can issue; and a filing in Cleveland, whereupon the deputy-clerk issues summons immediately, and forwards the petition by mail to the clerk's office at Toledo, is notsuffiClent to base a. valid service in the Western division· The service of a summons issued from the clerk's office of the United States court in the Eastern division, before the petition has been filed in the clerk's office'of the United States court for the Western division, of the Northern district of Ohio, in an action to be tried in the latter division, being premature and irregular, does not save the statute of limitations. 1
S'I:'ATUTE OF LIMITATIONS-SAVING THE STATUTE-IRREGULAR SERVICE.
At Law. Motion to set aside summons. This is an action on the official bond of a former postmaster against the principal and sureties. By the act of June 8, 1878, the Northem district of Ohio was divided into two divisions, and it was provided that terms of circuit and district courts should be held at Toledo, (in the Westem division;) that no additional clerk or marshal Should be appointed in said diBtrict; and that all suits not of a local nature, against a single defendant, inhabitant of the state, must be brought in the division where he resides; but if there are two or more defendants residing in different divisions of the district, such suits may be brought in either division. 20 St. 101. May 15, 1885, the district attorney left the petition in this action at the clerk's office in Cleveland, in the Eastem division, with the deputy-clerk there, who, at the district attorney's request, marked the petition "Filed," issued summons, and delivered same to the marshal; and thereafter, on the same day, forwarded the petition by mail to the deputy-clerk in charge of the office at Toledo, where it was first received the following morning. In each office papers are marked "Filed" by a rubber stamp, which reads the same for both offices. The deputy at Cleveland, upon forwarding the petition to the deputy at Toledo, advised the latter that summons had been issued. All the' defendants except one, who is a non-resident of the state, and was not served, reside at Toledo, and were there served. The defendants who were served appear specially, and move to set aside the summons because it was prematurely issued before any petition was on file in the clerk's office at Toledo. The motion was submitted to Judges WELKER and HAMMOND, at Toledo, on June 15, 1885, and, upon the suggestion of the latter that it was desirable to have a. ruling upon the question which would be authoritative throughout
at end of case.