UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS.
MINNEAPOLIS, ST. P. & S. S. M. Ry. CO.
(Circuit Court.:Q. North, Dalrota.
Cillie CivU. Proe. N. D.S 8OOo,provides toat in railroadcotidemnation proceed· ings' either party may demand a jury trial within SO days. from the tiling of the commissioner's report, bl,lt requiresnofurtherpleadiugs forlluch triaL Held, that for lihe purpose of removal ,to a federal court the demand, for a trial by jury is 'equivalent to the filing of'a,," answer in ordinary suits, and under Act Congo Maroh S, 1887,' S 8, the case will be remanded to the state oourt where the petition for removal was filed after the expiration of the SO days thus allowed.
CAUSES-CONDEMNATION PROCEENNGS-TIMEll'OB' 1l'ILING PETITION.
In Equity. Proceedings begun in state court by the Minneapolis, St. Pltul& Sault Ste. Marie Railway Company against Samuel K. Nestor for the condemnation of land, and removed to United States circuit court by defendant. Heard on motion to remand. Granted. A. H. Bright and Ge,orge K. Andru8. for plaintiff. S. L. Gimpel), and Winterer &- Winterer, for defendant. THOMAS, District Judge. On the 3d day ofJuly,1891 , the judge of the district court in and for Barnes county, N. D., upon a petition of plaintiff raihyay company, appointed commissioners to assess the damages that defendant land·owner might sustain by reason of the right of way granted to plaintiff over defendant's land in Barnes co'Unty, N. D., as provided in section 3000 of the Compiled Laws of North Dakota. August 22, 1891, the commissioners appointed filed their report in the office of the clerk of court, from which it appears that the damages of defendant assessed at $1,186. September 14,1891, defendant filed with said clerk a written demand for a trial by jury. On the first day of the term of court thereafter, to-wit, on the 8th day of December, 1891, the defendant presented to said court a petition and bond in due form for femQval of the case to this court, which was granted. The petition shows " v.50F.no.l-1
that the amount in dispute, exclusive of interest and costs, exceeds the sum of $2,000, and that the plaintiff and defendant are and were at and prio.r to that time .citiz:ns of pifiefe9t A transcript the record havmg been filed 10 thIS coullt f the ptallH.iff dow moves therem to remand the case to this court upon the following grounds: (1) That this court has no jurisdicti0I.I action; (2) the petition for the removal of thIs Actloti from' ,the state.· court to thIS court was made too late; (3) that S. K. Nestor waived his right for removal of said cause from the state court by not making his petition for removal on or prior to the time when issue was joined in said cause; (4) that S. K. Nestor iSftir" said pausej, (p) ,said cause nota with'tn the provisions .andinea,nillgof the act of coilgress' Of the 3d of March. 1887; (6) has not original jurisdiction of the controversy, and it is not, therefore, removable. The statute providing for the condemnation of real property for railroad purposes, so far as it is necessary to refer to the same in the consideration ofthis motion, reads as follows: "If which said may deslfe to locate Its road shall refuse to grant the rIght of way through and over his the j udge or sulldivision in which said real property may be sitUated, as pttivided in this article, 'shall, upon the ,petip,on,.o.f ltnd after ten days' notice, to the oppo·, site.,pillty',,:l'!i,tJ;i¢r tiy service 01: b,Y',leaVin g a <\opy there.otat his !lS, ual plac&.olresidellce, or, in, caaeof his non.residence in the territory,bYlluch publication ft jUdge may order, direct the sheriff of said ty 'd',ls, e,rs of said C?r R,UbdiviSion (or. I,t: be none "",1ch, then of the, terntory) as commiSSIoners, who ·.andwhomu8t not be interested in a like quesshall be selected by said tion. T,he comlllissioners shall be duly sworn to perform their duties imparIlW,l aWithey :slll!>U real property. and COil sider the sustain bX reason of such railroael; anel they lnJurywh;lCh sllch owner shall assess the damages wqich'said owner will sustain by such appropriation olhis land;'" , ' ' ,
This statute has been, with others,adoptedby the state of North Dakota as far as a "" " , ,,' , It then provides for the'makihg of the report of the commissioners to 91erk of the ,district, ampn:g other things, provides that, the raIlroad may pay to the clerk, forthe of the owner of the land', the $utfi.R.!isessed1:iy the, commissioners, and then proceed to consti'u,cit and "tnaintain its 'toad over across thepreIIlises appropriated. It W then 'futther that the of the c9mmissioners may be te"iewed on writteneXceptions}i1ed by either party in}he _, ?fflpe. or party may, '."ithin 'thirty days the filIng of such teport, file WIth the clerk a wrItten demand for a tna! by jUryjin Wh$chciJ.se .th,e,alllduiit of dl1mages be assessed by aJury, and be cohducted and judgment entered on the verdict in the sanie, 'as Ci vilactions in' the district court." Provisionis illade for to the the money. deposited with the clerk1ipon report of the by thermlroadcompany is to remll.ln'subject to the final decision 'of the court. 'This statute. in
MINNEAPOLISj"S'l'; p, & S. S.
Some respects, differs fr6n1every other'statute on the question to which it and to which my attention has !been called; but upon the authO,rity of B06m Co. Pattefson,98 V.'S} 403; at and from the filing of the written demand' fora trial by jury;;1)be controversy takes the form of ali action at law of aoivilnature, ill which the "Sole question fdt detetm'in'ation is the amol'1'ntof compensation that mUst be paid for the land approptiatedby the tailroad company. Whether or not the proceeding iaa suit from filing of the petition for the appointment of the commissioners, and the giving' of the notice to the owner as required, is not determined on this motion. 'Assuming that this case is removable under,the removal act of :March 8; 1887, (which is not decided,}it mlisttJe remanded, for the' reason that, the petition for removal to,this cour1;wllsmade too late·· The act of March 3, 1887. has definitely fixed the time within which a case may beiremoved. The act is restrictive in its natllre, as is manifest from the reMht decision of the supreme court of the United States,Jilisk: v. Henarie, 12 Sup. Ct. Rep. 207, and many other cases construing this act. By section 3 of the removal act it is provided that the petilion must be made and filed in the state court at the time or at any time before the defendant is required by the laws of the state or the rules of the state court in which the suit is brought to answer or plead to the declaration or complaint. By the Code of this state the defendant is requited to answer in ordinary actions of a civil nature within 30 days alter the service of the summons, when the complaint is served with it, or within 30 days after the service of the complaint, upon demand, when the SUlllmons.is served alone. Compo La'\Vs. c. 9, Code Civil Proc. How is issue joined in this Class of actions, )Inder section 3000, above quoted, and when that issue be joined? The sllituteprovides that "6ither party may, within thirty days after the filing of the report of the commissioners, file with the clerk a written demand for a trial by jury, in which case the amount of damages shall be assessed by the jury, and the trialsball be conducted, and judgment entered on the verdict, in the same manner 8S civil actions in the district court.» There is no further provision of statute in this state relating to any further pleadings or issue in this class of actions. When the demand for; jury trial filed, the cas6stands for trial like any ordinary action of ejectment; the 'railroad company seeking the appropriation of the l.and deRcribed in the petition, on the one side, as plaintiff, except that it pay the just compensation, and the owner ofihe land,' on the other side. as defendant, insisting upon his just compensation; that being the only question lor trial and determination. By operation of' law in this state the issue is joined byihe filing of a written demand for a jury trial by either party. No other or further pleading is required by the statute, and there is no rule of court requiring further pleadings, 50 far as lam advised. The case stands substantially the same as ifthe statute provided that, upon filing a demand for a trial by jury. formal pleading mtist on the same day, or some subsequent day, be filed. It was competent for the legislature to so provide. It could not be cessfully contended that the right of removal existed under the acto!'
Ml;'Tch 3, 1887, after'the answer had med and issue thus joined in the statute so providing. It must be conceded that under such a statute the .petition for rell10valmust bem,ade and presented ]:)efore the time for answering had expired. But the statute has in effect provided that the filing of a written deml!-nd for jury trial is equivalent to. that. Each party is fully advised by.the terms of the statute that a demand for a jury trial must be made within 30 days after the filing of the report of the commissioners. If it is filed before the end of the 30 days, the defendant bas, till the last day to make and ,file his, petition for removal. If not. filed till tbe last day ,he must remove on tbat day, or his right so to do is lost. In other words, the defend(l.nt, the land-owner, who alone is entitled to remove the case, to the federal court, must do so after the proceeding.has taken on the .form of aauit at ltJ-w of a civil nature, and withio30 days after tbe filing .of the report of the commissioners. It seems to me that tbis view is.in harmony with the decisions of the court uO<:1er the statute of 1887. It is unnecessary to pass on any other question on thil. motion. The case must be remanded, and it is accordingly so orl!eted.
(District Court, N. D. California. March 2l},1892.)
. PRIVILEGED COMMUNICATIONS-HuSBAND AND WIFE-LETTERS IN POSSESSION OJ' ADMbtIflTRATOR. . , .
. .'. Code Civil Proc. CaL § 1881, prohibiting the examination of a husband or wife, or after marriago, as to communication!! between them during marriage, does not extend its protection to letters from one to the other found in the possessiOnof tpe Wife's administrato!' after both are dead. v. 23 Pac. 229, 83 Cal. 138, distinguished.
2. SAMli-EXAMINERS IN EQUITY.
Where the evLdence is being ;takenbeforean examiner, the letters, even if privi. leged, !!hould be produced before him and made part of the record, under tbe rule of eqUity practice which reqUires that evidence objected to and rUled. out sball be incorporated in the record, in order that the court may pass upon the ruling.
Compliance with the rule is especially necessary where the letters constitute the primary evidence of a fact in issue, since, if presented to the court and rejected, the foundation would then be laid for secondary evidence·
. In Equity. Bill by John Lloyd, as assignee ofJames Linforth, John Bensley, and L. B. Bencbley, copartne,rs, James C. Pennie, as administrator of John Bensley, and James C. Pennie, as administrator of Marian L.;J. M. Bensley, deceased. Heard on an order upon defendant, asadm.inistratorofMarian L. J. M. Bensley, deceased, to show cause wby he shoull! not be required to producein evidence certain letters written by John aMnsley to said Marian, his wife. Order made to produce the letters. Hemry CJ.Hyde, (w. a.Belcher, of counsel,) for complainant. Naphtaly, Freidenrich .4ck6rman, (Myrick Deering, of counsel,) fOI defendants.