of chancery, provides that "every defendant who shall be summoned, pf as, required in this act, shalloelleld'fu' except', demur,plead, or answer on the return day of the W of copr of the ?f by notlce, at the expiratIon of the time reqUlred to be given, or wlthm such further time as may be grante.dby the court; ,or, in 'ltis" ,the 8t$tUtel! oHllirioisfr.taMaese defend'antswere reqqired to plead; and, by to cMe$ ',they 'were ,required to'file tlleu removs.llion,the 5th day of September. ' But it is insisted that, inasmuch as the time for these defendants to plead was extended by an Qf for; removal was IJlade before the expiration of that extension,therefore,the applioatiol}. forremoval was made, in apUitne. " L<l<>not,QOncur;il) this view, The statute requiring the application for reIllOvlllto,:bemade at or, beforerthe time the defendant is required to plead has been held to be imperative. 626; Xelie v. 0>., 40 45 513;,1'hese defendants, then, .'Wrlie}.o qfremoval Oll the 13th qay, of tqe tiD;leto plead was and I cannot see how this Of of court made in, p1,lrsuance thereof,can be re,st9re to right of removal which, they hadlo.st. ,<;lPOlpllliiq"pt been entirely willing that these · rightto,put.in any which theym,ight ,stl;\te, 90urt.,lmta mere, agreement to that effect is not and . p,eld to waive or restore to tile defendants the right of they .. )ost. ,li)lf these reasons the ,motion to remandis wJtJ1outconsidering or passing upon the question not HI-e a caufle of action which would to remoye thE! ,case. entitle these
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In '8. suit to quiet the certain nihiinglands, an allegation in the answer that the lands do not contain known minerals in lode deposits, of sufficient value to pay ,, for workingtbem,.is of, pot a cqnclusion ,of 1alY.
O;J!' FACT AND LAW,
An alleptionthli.trespondents are oWners of said land by virtue of a certain con, " veyanoo is ,.
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" " . An allegation that thEl applicatfon for a lIatent to tM preinises lIoS " p1ll.cer ,grOund :was macN belOrethe location G,f a lode,allliged to exist therein 18 ,. qf , ',,: ,
4. SAlliE-LANDS WITHIN CITY LIMITS.
"An allegation' that the lands are withinllll.e-lSor(lorste limits of a city, and that the J,'Elspondents are the owners ancl, :qC!Cupier8of ,the 'Ilurface, without any clAim
O'KEEFE 'IJ,' CANNON;
the. cttyhas' !\cquittld title to Ql'takeilany to do so, Or'that they have beenusuallyoccupied'u 'a place of bURness, islmpel'tineilt, ·forit does not ahQW that the:lallds maynotbll taken as .110 minit\g cla.in1 ifvalua.ble for the.'mlnerals ,thereincontailled. , '',' j : ,',
In Equity. 'Bill· by: Will O'Keefe and John D. Braym'an against Charles W. CannC/n, Theodore H. Kleinschmidt, and Edward W,. Knight, Sr., to quiet the complainants' title 'to 'certain mining lands. On objections to the answer. Sustained in part. J. A. Carter, for plaintiffs. Toole Wallace, for defendants. KNOWLES, District Judge. Plaintiffs filed their' bill ot complaint against defendants, which presents a suit for the quieting of their title to:certain mininggrbund described in the bill. Defendants filed their answer to said bill, and to this answer plaintiffs have filed certain objections. The first is that the following allegations in the answer constitute nothing but the statement of conclusions of law, namely: "Defendants, further answering, allege that said lands never contained. and do not now contain, known minerals in lode deposits of any value sufficient to justify expense of exploitation or expenditure in the effort to extract the same, and that these defendants are the owners aDd oossessed of the said N. i of N. i of the S. E. ! of see. 31, under and by virtue of a grant and conveyance thereof from the Northern Pacific Railroad Company, and by reason thereof are the owners of, and the whole, thereof." These allegations are not legal conclusions, but allegations of fact.! The allegation that it does not contain known minerals in lode deposits of any value sufficient to justify expense of exploitation or expenditure, in the effort to extract the same, is but one mode of alleging that the ground is nonmineral. It hlU! been held by the supreme court that ground of this kind is nonmineral. The allegation .that the defendants are the owners of said land by virtue of a conveyance ftom the Northern Company is certainly nota legal conclusion, but one of Pacific fact. The allegation of ownership, without stating how the ownership was acquired, is the allegation of a fact. It was not necessary to state the date of the conveyance by said company. That is not the point presented, but M to whether it became the,owner by such conveyance. in their answer the date of The objection that defendants do their application for a patent to the premises as placer ground is not material. It is stated that it was prior to the location of the Banker's Daughter lode. This was sufficient. 'The patent obtained subsequently from the government would relate to this date, and it might be mined at that date as to whether the said lode was then known to exist. If it was, it would ,be excluded from the grant made. by the patent; if not,itwould passwlth thep1!lcer patent. All that it was necessary to application was made prior to the location of said allege was that lode. , ' is that the following allegations are impertinent: The third .. And for a further and add,itional separate answer these defendants allt;lgo that all of the premIses described in complainants' bill were, prior tQ tbll prq.
of the BanJter's Daughter lode, ever since have been, aild ,"QQW,are, part andpOl'tliOn"of"the city of HeleDa. county of Lewis and Olarke,' ,and state of Montana,'thellame being an incorporated city; and said premises, and the whole thereof, then did, and ever since have been, and now do, lie within the corporate limits of the said city;, and that these defendants tbedate last aforesRid, ,'8ver8inoo have been, and now are, the ownersalildactualoccupants of tbesurface ground of said premises, and the wholtltJlereof,. an4 have a¢;qaIly had tbeposll8ssion thereof, during all the period last aforesaid." , There is no claim in these allegations that the city has. acquired any title to said premises, or taken any steps to acquire the same through its officers. It is not claimed that the same has been reserved by any order oftha president Qf the United States., There is no claim that it has been uBuallyoccupiedas a place of business, or in fact any allegation in the above that would show that it might 110t be taken as a mining clahn.ifvalul\.blefor tb,eminerala therein contained. This objection is therefore gQod, and this allegation should be stricken from the answer.
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,. One of sb: legatees entItled under' the 'lV,ill f.O equal shares in the residuary estate '" lfI,led ,a.>blll, against her' colegatees to compel thEllllto pay to the exeoutor $5,877.88, whillh by 'Vi1)Q8 testatrix. The circuit dismissed the 'bUlon' the merits, and,plaintiff ha.vtng appealed, the supreme court dismissed holding·that th.e interest 'Of 'plaintiff was only one sixthotthat sum, to thl;tt court jurisdiction. Held, that this decision was , also deoisive against the inl1sdiction of the circuit court, and on a bill of review the original delll'll8llb.ould b!j reversed, and the :bill dismissed for want of jurisdiction, · without prejudice; but is ,not entltllld, to have the proceedings erase(J, from the docket. ' ,., ' I. 'SAME-COSTS. In thus its dillmiflling the bill, the circuit court had no power to restitution of tqE;lPOsts of the appeal, the same having been paid by plaintiff in' pursuance of the mandate 'of the snpreme court. . a'SAME. ' ,i , Nor. uuder the the .circuit court order restitution of costs ,.paid by plaintiff und.er its original decree disIDissing the bill on the merits, for , plaintiff was in fault in Invoking a jurisdiction to which she had no right to resort; , and for the same reMon the,QOsta of the bill of ,review should not be taxed in her favor. . .
In Equity. ,. On motion' for judgment on a bill ofreview. original p!oceedingwas a suit brought by Martha A. Miller; as legatee under the will of Mrs, Irene Clark, against five other legatees, who were entitled with to equal shares in estate. The purpose of the bill was to compel defend alltsto pay to the executor $5,377.83, which inter vivo8 from the testatrix. The courtren-