REI'ORTER, yol. 48.
BunER; 'This case is not reported, but is referred to and accepted as authprityin Syn. Ser. No.7 ,999. ' See, also, Dobson v. Cooper, 46 Fed. Rep.l84. where Judge BUTI,ER again ruled on the same question. I arnnot unmindful of the force of the reasons urged by the board of general appraisers in their opinion, and by the district attorney in his brief,as ,to, thc import of specific language used in paragraph 377, and that grammatically the words" hair of the * * * goat" are not qualifieqby tbe word" comQingj" but, in view of the surrounding context, 0,£ congress, tbe construction given by the federal coqrt.· alld tpetrellsury ,departml'lnt for a long term of years except in the yea.. I feel bound to bold tbat these words were not intended to If this importation is not within parais clear that it comes under paragrapb 604 ofthe free-list. of the bqaJ;d of is reversed, and judgment-sbpuIq be entered for the petitiOners for a return .of the amount of
Gotirt.N. D. Iowa,W.
FEDERAL PRACTICE-FOLLOWING STATE STATUTE-EQUITY AND LAW CAUSES.
The C()DsUtution of Iowa perpetuates the distinction between law aDd equity ju·. risdiction, but. the state statute provides that, if an error is made in the .formot an action; it shall-not danse an abatement thereof. but the cause shall be transferred to thepro:per(iocket.Held, tllat the circuit court, sitting in Iowa, should follow this practice, and, upon sustaining a demurrer to a bill in equity on the ground tbat' tlle complainant had an adequate remedy at law, would permit the be to 'the law docket, withlElave to amend the pleadings, if necesear;r.
Suit by the United States Ban,k the cpunty of Lyon, Heard on motion to transfer the cause from the equity Motion granted. ' . . . HenderSon, Hurd, Daniels &- Kiesel, for plaintiff. , Van Wa9enen &- McMiUan,Kauffman c!d1'Ue ey, and E. O. Roach, for defendants.' "
At La". Iowa, and to the
SHJRAS, J .',l'his suit is pending upon the equity docket, the bill therein having, been filed:torecover a decree or judgment against the defendants for tile a1Ilount of money paid by the complainant bank in the -purchase of l;lertain bonds-issued by the county of Lyon, but which the county nQw :refqses to pay ,()n the ground that the bonds were issued therefor. Upon demurrer to the bill, this court held tbat the, facts alleged in tbe bill did not· show a case, for equitable. relief, on the ground thllt complainant had an adequate and sufficient remedy at law,:l1nd that the real object sought by complainant was a decree or judgUl:ent for the money advanced in the purchase of tbe bonds.
UNITED STATES BANK 11. LYON, COUNTY.
The demurrer was therefore sustained. See 4.6 Fed. Rep. 514·. Thereupon the complainant filed the present motion, asking that the cause be transferred to the law docket, and be there proceeded with as a the law action. The question is whether this is within the power court. If the court of equity was one separate and distinct in all tespects from the court of law, each court being presided over by its own judge or chancellor, exercising authority under different commissions, and the courts being created under .different acts of congress; it would be clear that a case at law, wrongly brought in the court of equity , could not he transferred from the one court to the other. The circuit conrt of the United States, however, is a single court, vested with jurisdiction over actions at law and suits in equity. Thus in· section 11 of the judfciary .act of 1789 it is enacted" that the circuit courts shall have original cognizance, concurrent with the courts of the several states, of an suits ora: civil nature at common law or in equity, where the matter in dispute," etc. Therefore the transfer of a cause from the equity: to the law docket oithe same circuit court is not transferring the case from the jurisdiction of one court to that of another and distinct tribunal, but, in effect, is merely directing that it be placed upon the. proper docket, so as to be proceeded with according to thE:' rtilesgoverning the tice in that branch of the court. In the state of rowa, the·distinction between law and equity jurisdi"tion is' perpetuated in thfl state consti., tution; yet by the statute it is provided that, if an error is made in the forin of action adopted, it shall not cause an abatement thereof, but the cause shall be transferred to the. proper docket. Why may . not this court follow this statutory enactment as a proper rule of action, when it finds that a case, proper for an action 'at law, has been comIDEmoed in form· ofa suit in equity? If the cause of action is one COg_I nizable in a circuit court of the United States, and is brought ,in that but an error is committed in bringing it in equitable instead of legal form, why is it not within the power of the court to order that in thisparti<mlar the form of the action may be amended, and the cause be ent.ered upon the proper docket? Why putthe parties to the delay and expense necessarily caused by lI. dismissal and recommencement of the proceeding, when the same can be saved by following the rule enacted in the state statute, and adopting the same as the proper practice in the federal court? In sustaining the demurrer to the bill, the ruling was not that the circuit court did not havejurisdiction, but that the case was not a proper one for equitable cognizance, because an.adequate remedy could be had at law. It was not held that the complainant did not have a cause of action, but only that the form of the proceeding was erroneous, in that it should have been at law, and not in equity. Under the broad provisions of section 954 of the Revised. Statutes, is it not permissible to the court to permit an amendment of the pleadings so as to conform the same to the kind of remedy which the ·court holds is appropriate to the case, and if, when amended, the cause is one proper to be proceeded with at law, to order the cause. to be transferredto that- docket, or vice versa'
In cases remoyed from· the stnte courts, it sometimes happens that a case pending in equity under 8 state statute becomes" under federal practice, a case at law. If, upon removal, the cause is docketed upon the equitycll.lendar, because it was in equity in the state court, certainly it;wllS. within the: power of the federal court to order it to be transferred to the proper docket, if it is a case at law, under the federal practice; It sometimes'appears in removal caseS that the cause, as removed, embraces several con.troversies separable and distinct, some of whicb are of equitable and some oflegal cognizance. The circuit court, by the removal, takes jurisdiction of the entire cause, but, if need exists, it may require a separation of the controversies, so as to place upon the law dooket the controversies of legal jurisdiction, and. upon the equity docket those of equitable cognizance. The power thus exercised, of assigning removed causes to the proper docket, is akin to that now asked to be exeicised in.ordering.the transferofthis cause from the equity to the law docket; and is there any good reason why, if the power exists in the onecaile, it may not in the other? Counsel for defendants argue with ability the proposition that the section of the United Ttates statute providing for' conforming the practice in law cases with that obtaining in the 'stBtecourts .cannot be 80 construed as to authorize the court to modify the 'practice in suits in equity, and there Can be no doubt that such is the law. The difficulty with the argument is, however, that the court is not asked to modify the practice and mod.e of procedure in equity causes, but only to determine whether it has the power to order Il. cause wrongly brought inequity to be transferred to the law side of the court, thereto be proceeded with as a law action. Counsel for defendants cite, among others, the case of Thompson v. Railroad 00., 6 Wall. 184, as an authority adverse to the power of the the motion, but, on the contrary, it tends to support the court to right of the court io grant the motion.'l'he case was commenced as an action at law in a state court, and was thence removed to the United States circuit court. When it reached the federal court, leave was obtained to substitute a bill in equity for the petition at law, and the case 'WIlS then proceeded with !lsa suit in .equity. A decree upon the merits '\taa rendered,'and the defendants appealed to the supreme court on the ·gt'()und tha"t there was an adequate remedy at law."' The supreme court sustained this claim, taking jurisdiction of the case by appeal, because the Cause in the federal c6urt was in form a suit in equity; but in its final order it did not dismisS the cause, nor order the circuit court to dismiss the saine, but it reversed the de.cree, remanded the cause, with directions to dismiss the bIll without prejudice, (not the cause, but the :bill,) and to proceed in conformity with the opinion. The opinion pointed out that there was no necessity fora change from law to equity alter the suit was transferred, and that the action at law could be main1Ained in the form in which it was brought in the state court. The error which caused the reversal was in permitting that which was properly a law action to be transferred into one in eqnity.There is no intimation in the opinion that, if the facts had been such as to justify the
UNi'rED STATES fl. HOK RING.
ohange in the form of the proceeding, the court would not have had the right to permit the ,change ,from the one to the otherform, which would, of necessity, have invdlved the transfer frofuone docket to the other. On the contrary, the inference is that,if the facts had required the change, the power to authorize it exists. Furthermore. is it not fairly inferable from the order made by the supreme court that' the circuit court, after dismissing the bill in equity I had the power to proceed with the cause in its original form, witbout requiring the plaintiff to mence the action. If this was not so, why was the circuit court directed, after dismissing the bill in equity, to proceed in conformity with the opin· ion? See case of Oherokee Nativn v. RaiZwayOo., 185 U.S. 641,10 Sup. Ct. Rep. 965, in which the supreme court remanded a case in equity to the circuit court, with instructions requiring the case to be transformed into proceedings at law for the awarding damages for right of way. I deem the question one of exceeding doubt, in a case brought originally in this court, and it can only be settled by an adjudication of the higher tribunal. If the right to order the transfer exists, it will tend to save expense and delay to litigants; and, for the purpose of obtaining an adjudication of the question, the motion will be sustained, and the case will be transferred to the law docket, there to be proceeded with as an action atJaw, with leave to amend the pleadings, if that be deemed necessary.
UNITED STATES tI. HOM HING.
(Dl8tr1ct Court, N. D. Ne1D Yor1c. January 6, 1892.)
CmlllBD EXOLUSION AOTS-POWEIlS 01' UNITSD STATB8 COM:JnssIon_DBDnnJ8 PoTBSTATBllI.
The provision made by the Chinese exclusion acts, (22 U. S. St. at Large, p. 58, I 12, and 25 U. S. St. at Large, p. 476, I 18,) for the examination before United States commissioners of Chinese persons alleged to be unlawfully in this country, clothes them with a jurisdiction which is entirely independent of the district court; and that court has no power to issue a dedimu8 potestatem to take testimony to be used in such an investigation, since Kev. St. U. S. § 866, authorizing the issuance of such a commission by the federal courts "in anr case where it is necessary in order to prevent ,3 failure or delay of justice·." applies only to oases of which those courts have jurisdiction. '
At Law. This is an application for a commission to take testimonyof witnesses residing in San Francisco in a' proceeding under the Chinese exclusion acts, pending before Edward L. Strong, a United States commissioner at Ogdensburgh in this district. The affidaVIt upon which the motion is based is not entitled in the United States district court, but "before Edward L. Strong, United States commissioner." The motion is made at a special session of the district court.,' The proposed order is entitled "At a special term of the United States district court," it directs that a tkdimua potestatem issue, that it be returned to Commissioner Strong, and