ALLEY
e.
EDWARD BINES .LUMBER CO.
903
vided so as render it a several proceeding;" that "the trial was one as to all of the defendants," and one jUdgment; and that the declaration of the statute that the judgment should be considered several was only for the purpose of regulating the manner of obtaining satisfaction. This is an interpretation of a local statute by the highest tribunal of the state, and must be respected as such. The point suggested by counsel for the lot owner-that such construction would approve legislation to deprive the federal court of legitimate juris· didion-is not well taken. The means for tax assessment are en· . tirely within legislative control. The case of City of Chicago v. Hutchinson was decided in this court prior to the Pacific Railroad Removal Cases. It was a similar con· demnationproceeding, and entirely in the line of the later decision. rt is equally distinguished from the present case. 1 am satisfied· that there cannot be independent separate proceed· ings for this assessment; that this court is withont jurisdiction, in whole or in part; and it must remain with the county court, where plaeedby the statute. An order for remand will be entered accord· ingly. ALLEY et a1 v. EDWARD HINES LUMBER CO. (Circuit Court, W. D. Michigan, S. D. December 27, 1894.) Ri:KovAL OF CAUSES-DIVERSE CITIZENSHIP.
to
It is not necessary; to entitle a defendant, sued In a court of a state of which he is not a citizen, to remove the case to the United States circuit court on the ground of diverse citizenship, under the second clause of section 2, Act Congo March 3, 1887, that all the plaintiffs should be citizens of the state in which the action is brought.
This was a suit by Charles G. Alley and others against Edward Hines Lumber Company. The suit was brought in a court of the state of Michigan, and was removed by the defendant to the United states circuit court. Plaintiffs move to remand. Smith,Nims, Hoyt & Erwin, for plaintiffs. Bunker & Carpenter, for defendant. SEVERENS, District Judge. Two of the plaintiffs are citizens of New York and one of Michigan. The defendant is a citizen of llUnois, and has removed the case. The ground on which the motion to remand is made is that the plaintiffs are not all citizens of Michigan, that being the state in which the'suit is brought. 'l'he question turns on the construction of the act of March 3, 1887. Original jurisdiction is given by seetion 1. The second section provides for removals. The first and second clauses of that section require the same elements of jurisdiction to exist as in section l. The present case is one comprehended in the second clause, and the conditions of removal must be ascertained by reference to those reqnired by the first section for original suits. See Tod v. Railway Co. (C. C. A., 6th Circuit, Oet. Sess. 1894) 65 Fed. 145. The fourth clause of section 2, being the one which provides for removals on the ground of local prejudice, contains an additional requirement.
be ,citizens. o( t}J.estate in which the it:was ]'p.llert Q.J.,. in v. Iron by .Mr. Judge NewmaD in Op.,57 Fed. 41,7, that allthe plaintiffs must be order to .eptitle the· defendant to remove citlzens the case;;. .t;herewould seem to be no Nom for doubt, upon the clear fQurth clause, be so. There is no imposed, however, by the first and second clauses it wltlil held by Mr..Just\ce :arewer, in a carefully considered opinion in Kansas City, et<::., }t. Co. v.Interstate Lumber Co., 37 ,that it necessary to entjtle the defendant to a removl:!1" Pfovisi9ns of the second clause of section 2, that the plaj];l.t,iJf$Ollld be,a:citizen of the state in :which the suit was brought; and it was helq:in that case that tb.e right of removal existed,: of the parties was a citizen of that state. It that the elements of jurisdiction did not in,where suii; should be brought; and that the latter, clude being givenfQll the. conN£l;:o1ence of the party, w.ight be waived by him; and it was added by Mr. Justice Brewer: SUlt ..
"If the suit had been commenced in this court, and process served personally upon the defendant, and it had raised no question other than upon the merits of the controversy. this courtwotlld have had undoubted jurisdiction, and the judgment, .It: renQ,ered, would have been valid. Ifth.e jurisdiction of the court upon' his failure to inSist upon his personal privilege be conceded in the one case, why should there be doubt of the jurisdiction when he voluntarlly seeks the eourt?"
In accord \Vith that decision are the cases of First Nat. Bank v. Merchantst.Bank, 37 Fed. 657 ; Burck v. Taylor', 39 Fed. 581; and Uhl v. Burnham, 42 Fed;l. These cases furnish ample authority for llOlding,that the motion to remand cann(}t be sustained; but I wish to add that the construction of the act adopted by them seems to toJ:l,e .the right one. 'rhe cases of Wilder v. Iron Co. and Gann v. Railroad Co., referred to, are clearly distinguished fr(}ill those last mentioned by the e;x:press language of the fourth clause of the section, limiting the kind of suits· removable for local prejudice to those in which the plaintiffs are citizens of the state in which the suit is brought The motion to remand must be overruled.
JORDAN v. WARD et al. (Circuit Court of Appeals, Ninth Circuit. October 10, 1894.) No. 158.
.
L
RESUI,TIN.a',l.'nusT-PUBLIO LANDS-PRE-EMPTION TO CONTES'I'A:NT.
CANCELLATION-PATENT
W.,acitiY.en.' duly qualitl.ed, settled on a certain 40' acres of unsurveyed public land, and resided on and cultivated it as his home 4 years and 10 he died. Three weeks before W.'s death, and during his months, temporary absence on account of sickness, J. went upon such 40 acres. removed and appropriated the improvements, and entered in the local land oMee' his homestead entry, falsely alleging settlement thereon 14 months before such entry. A few days afterwards. and 35 days after a
JORDAN ". WARD.
905
plat of the survey of the township was Illed In such office, W. applied to enter the land as his 'homestead, but his application was refused because ef J.'s previous filing. About 80 days afterwards, W.'s devisee filed a con· test, and the land. department canceled J.'s entry, and Issued a patent to such devisee, the decision being affirmed by the secretary of the Interior. Held, that a bill by J. against such devisee and his mortgagee to establish n trust in such land, and to compel a conveyance to him, was properly dismissed. I. SAME.
The fact that the land' department canceled J.'s entry because Its 0:1'ficers erroneously construed Rev. St. § 2291, as conferring rights on such devisee, did not entitle J. to maintain such action, It appearing that J. had no right of entry.
Appeal from the Circuit Court of the United States for the District of Washington, Northern Division. Bill by William L. Jordan against John C. Ward and the Lombard Investment Company to establish a trust in favol of complainant in certain land, and to compel a conveyance to him. From a judgment dismissing the bill, complainant appeals. :A.ffirmed. Chas. K. Jenner, for appellant. J. T. Ronald, for appellee John C. Ward. O. G. Ellis, for appellee Lombard Investment Co. Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge. McKENNA, Circuit Judge. This is an action in equity to decree respondents trustees for complainant for the N. E. i of the S. W. i, section 30, township 21 N., R. 6 E., Willamette meridian. The case is brought here on the pleadings, the complainant contending that the answers are insufficient to constitute a defense. The bill alleges, in substance: That the said land, on the 15th of May, 1883, was unsurveyed pUblic lands of the United States, and subject to entry under the homestead laws. That on said day plaintiff was qualified to claim the benefits of said laws, and had, prior to said date, occupied, cultivated, and Improved said lands, and was upon said date, and had been long prior thereto, in peaceable possession thereof, and residing with his family upon an adjoining legal SUbdivision, which was surveyed public land, and subject to entry under section 2289, Rev. St. That on said day plaintiff entered at the United States land office at Olympia, Washington territory, said land and adjoining legal subdl· vision, containing 159 45-100 acres, under the homestead laws, and the same was' allowed and entered upon the records of said office, and the legal fees accepted by the register and receiver of said office,and a receipt delivered to hlm,-No.5,114. That thereafter plaintiff, with his family, continuously resided on said claim, CUltivating and improving the same. That on the 8th day of July, 1889, he, having given notice of his intention according to law, made final proof of his claim except tbe said N. E. 14 of the S. W. 14 of section 30, and paid all fees and commissions, and a patent ·was duly issued to him. That heappUed to make his proof on all his claim, and was able to do so, but was prevented by refusal by the officers of the land office to receive It, urging as a reason therefor a pretended cancellation of claim as to. said land; and plaintiff alleges that the said officers, in so doing, erred In the interprem,. tion of section 2291 of the Revised Statutes, and such interpretation waa prejudlciaJ to plaintiff, and against his protest. That on or about the 2d day of August, 1883, defendant Ward· filed a contest affidavit In said land office, In which he alleged that he was the devisee of one John J. Wlntel'S, deceased, and prayed a hearing to determine the priority of settlement be-
·906
V:91· 64.
E;. ","of the S.. ..}4 ofseqUOJl 30. ' th/lt Attended to .enter said .1lUlC!iI4S"av li:omestead, before '1llaklng It, .8.Il,q, thai;, VPOD ,such appear; shOWIng,the,oj'ijeers gr8.I;ltl:lllah\laring, and duly elted.plaintlf( andthat,plldntil't and by attorney, .and protested against the same,' but the officers permitted the same to proceed·. and decided that plaintl1't1s <:laim"should be .and plaintIff theA'euponavpealed to the commissioner of the general land office, who affirmed the said decision. Plaintiff thereupon appealed to the secretary of the interior, but said decision of the c9DlIJl,\;isio/ler became:>tlIl,al through no, fault of, and .against the protest of, a.nd said <;laim was canceled; and that the decisions were ordered, by reason of misinterpretation of said section 2291; and that no question of disputed fact entereg into the consideration or determination of said cause by any of said offic&s. 'fhat on the 2d day of'::1l>ecempe,lt,,1884, defeqda..nt:Ward was permitted by said register and receiver to make, and did make, filing No, 7,095 as a pretended homestead, as and by of his being of said Winters, \1eceased, on said land, in of IUld'ftDalproof, ll. patent was issued to him. by reason of' whlch"J:le pretendtd!:tc:iDiortgage. the said land to the ,I;,ombard and,tQeJatter claimllsuch as a vall!l and That: alld mortgage callt a cloud on plaintiff's title, and'the ·respoiidMJ:ts.shc:ium be decreed to hold in trust for plaintiff, and to convey such title to him. That value of the land exceeds $2,000, and does not exceed $10,00lj), lind that. plaintiff' has np plain and adequate remedy at law. .. ... ,
to.
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and has t(tenll:blelt to deny or affirm their truth, except that it admits the ·issuance'oi aiDlltent to Ward, and alleges .the execution of a as valid :liens, and except that mortgage bylhl tl1 to it, 8JJ..dtbat jt Ward's :1)1" ,,!l,\id mortgages cast a cloull upon any; of plaintiff, and denies that Wai'dwas wrong1'tllly issued. It allege!\! that it is a corporation cre'ated under the laws of Missouri, and entitled to do business under the laws of Washington, and that It loaned Ward $3,062.50 in good . baving sellJ{ched -the recordspf the CQ:unty of King In which faith, and· . said landll fll'esttuated; and that said Ward executed and delivered to it his written: ;u.ptQ and couponbon,d, which are attached to the answer. No point being ma,dsuponthem, they are omitted. i
'.l'he. ..in the UlWll.\ form, oath. The answer of the Lombard Inveshnent Company as totlte .allegations of the bill says: , That it qoes, lwt k;now,"an,jI, forth, as to or. otherwise,
The ansWer of .the detelldant Ward aUeges subsrnntially the following facts: . The land In dispute' is the: northeast quarter of the southwest quarter of section thirty (30), township twenty-one (21), north of range six (6) east, in 'King August 1, IS7S,John J. Winters, ,a citizen dUly i':quaUtled,fMtled on the land,. being unsul'Veyed, and continued to reside "upon and cliltivated it as hisihome up to his death, June 9,1883. The survey ()f the townshitlwas made and approved March 16,1883, and plat filed In district land·'oftlce April' 26; 1883. May 15, 1S83, Winters had ten acres in . cultivatlon,and. had a. dwelling house, barn, and other. improvements, and was in open,notorious, excltWive, and peaceable possession. For a long time . prior to May 15, 1883,Jordan'had resided with his family upon adjoining land, and'knew"()f' the.residence of Winters. On May. 15. 1883, while Wintets ,was 'temporarily j absent, confined to his bed of last sickness in the hospitiJl'at Jordan, with full knowledge of facts, went upon tM .land, 'ttJre' down Wintfers'house and barn,' and appropriated to himself· alIWltt1lers'! improvements, and, on .said 'day entered in. tlle local land office hIs' 'lrottlestead entry for the lands upon which ·he. ,had \resided, including itt h!$ 'fililig the forty acres in question, falsely alleging settlement thereonjanttaty'l; 1882. On May 31, 1883, . and within. the time allowed by law afterflllilg or the plat, Wlnters.made:.application to entel' the lll.nd as
JORDAN II.
wAim.
907
bls whlcbwas retused tor the reason that Jordan bad filed on the same a tew days before; Nine days later; Winters died, leaving Ward, his sole devisee, all his Interest In the land. August 22,. 1883, Ward, as devisee, applied to contest Jordan's alleging the tacts ot Winters' set· tlement, ref.'idence, devise, death, etc., and to have same canceled as to the forty acres in dispute. Hearing was had October 7, 1883, b.oth parties being present In person and by attorney, and the register and receiver ordered that Jordan's entry as to this land be canceled, .and that Ward, as dp.visee ot Winters, be allowed to enter same. Jordan appealed, 8Jld on June 30, 1884, the general land office decided "tha,t said Winters complied with all the requirements ot the statute from the date ot his settlement UP to the day ot bls death, that he was qualified to make a homestead entry, that he applied in due time to make a homestead entry to the tract Involved, and that he wasil. single man," and affirmed the decision of the local land office,· and Instructed that Ward be allowed to enter the land. Jordan again appealed to the secretary ot the Interior, but afterwards filed notice duly waiving said appeal and all rights thereunder. Said appeal was by the secretary ot the interior dismissed. December 2, 1884, Ward, as devisee, accordingly entered the land as a homestead, and In due· time proved up and received patent, dated July 18, 1889. Jordan never did reside upon the land, and never put any Improvements upon the same. Since Winters' death, Ward has been In open, notorious, exclusive, peaceable, and midisturbed possession" continuously making it his home; arid It is the only home he has had. He· has greatiy improved the same, clearing, grubbing, putting. out It hopyardot : eleven acres, and constructed hopkilns, It storehouse,. barn, and other improvements, to the amount of five thousand dollars ($5,000).
Appellant excepted to the answers of respondents, but the exceptions were overruled by the court, and, appellant refusing to plead further, judgment was entered dismissing his bill. The ing of the court is assigned as e r r o r . , The ruling was correct. If· the facts set forth· in the answer are true, Winters had a right of entry (Act May 14,1880, § 3; 21 Stat. 141; Sturrv. Beck, 133 U. S.547, 10 Sup. Qt. 350), and Jordan imposed on the officers by a false affidavit. It was competent for. the land office, wben the imposition was brought to its notice, to cancel his entry. Knight v. Association, 142 U.S. 161, 12 Sup. Ct. 258; Gornelius v. Kessel, 128 U. S. 461, 9 Sup. Ct. 122; Mill Co. v.' Brown (decided by this court Nov. 14, 1893) 7 C.O. A. 643, 59 Fed. . 35. See, also, Mortgage Co. v. Hopper (decided at the present term) . 64 Fed. 55R, where this question is fully reviewed. Jordan was given a hearing, and appeaTed personally and by attorney, and successively appealed from decisions against him to the commissioner of the land office and to the secretary of the interior, who affirmed the decisions of the register and receiver and commissioner. It is alleged, however, by appellant, that his entry was canceled because the officers of the land office construed section 2291, Rev. St., as conferring rights on Wal'd as the devisee of Winters. If so, they necessarily decided that Winters had the rigbt of entry, and that Jordan had not, which decision, as we have already said, was correct. If they went further, and gave Ward rights he was not entitled to (of which we express no opinion), it is no concern of appellants. He, at any rate, was not entitled to a patent, and has no cause of action against respondents. Lee v. Johnson, 116 U. S. 48, 6 ,Sup. Ct. 249;' Mill Co.v. Brown and other cases supra. The Judgmeht of the circuit court is therefore affirmed.
FEDERAL . ': :,:""
vol. 64. "
:",',
·".· F.lL\UD-
et a1. v. NATIONAL Court, E. D. Pennsylvania. No.<16. BONDS."
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BOND & INVESTMENT CO. December 13, 1894.)
N. Co. was Organized for the. purpose of "Issuing and selling bonds monthly instaUments,and paY!1ble from the redempt;ion and reserve fund," ostensibly int,ended to assist perSons of moderate means to invest theft savings to advantage. The system .of Investments Which it devised 8J).d'lllIt in practlcewlls such that'an, Investor, receiving no special adcould never get back eV'ellai1' he had put in; but a chance was by anticipated redemption' of some of the bonds, to obtain an li!;ol'1;n'tant premium at the expeIl,$eof other investors. Held, that such a SCheWe ,was deceptive.and and, in its nature, simply gam,that a bondholder. who. ha(l 'pllld money into the. treasury of the was entitled to havell,receiver of the assets of such corporatlbn. to fraud,lUld preserve the subject of litigation, determination of the rights of all bondholders.
:Mutual Bond & Investmel)t Company for an injunction and receiver. Hearing upon bill and. answer. El'IiestL.Tustin, for complainants. John J. Ridgway, for defendant.
',1.'4m,Wasa suit by George W.McLaughlin and others against the
DALLAS; Oircuit Judge. Upon the filing of this bill, and before answer,a motion for injunction and for the appointment of a receiver was made, which was refused, because no necessity for making an order'involving such serious consequences, in advance of the formal presenttitlon of the defense, was perceived. The cause has, however, been since fully :heard on bill and answer, and is now for decision; bnt two incidental matters will be first disposed of. Oharles A. OhaBe'nlUl applied for leave to intervene as a partyplainti:ff. This applieatioh is. supported by affidavit that he is one of the class oil whoseb'ehalfthe bill was filed. I do not recall that his right -to intervene'was disputed. At all events, it appears to be unquestiouable, and he will be allowed to exercise it. The defendant has moved that certain affidavits which were filed on behalf of theplainti:ff on NovembeJ.' '8, 1894, be stricken from the record. These affidavits were filed without leave of court, arid under the impression that they would be foreonsideration on final hearing. This was a mistake; 1 have not 'considered them, and the defendant's motion will be granted. , The deferidabt:1s a .corporation created under the law of the state of West; Virginia !lforthe purpose [as stated in its certificate of incorporation] of Lissuing and, bonds· upon monthly installments, and payable from: the redemption and reserve fund, made up of the appropriaition ola eettain part of the installments paid in(according to tables which Insure perfect equity to both large and small investors; theadvantageiof the association being to encourage and assist persons ofriloderateimeans to systematic saving, and by advantageous cc>-Oj)eratiop'to1lealize larger profttsthanthey could by investing in savings banks or huilding association"." In pursuance of this de-