WOOD 'D. DRAKL
WOOD v. DRAKE et aL (Circuit Court. D. Washington, S. D. December 4, 189lS.'
RBHOVAL OF CAUSES-SUITS AGAINST FEDERAL OFFICERS-FACTS NOT APPEARING DI' COMPLAINT.
An action for damages for false imprisonment, based upon acts done by the defendants as marshal and deputy marshal of the United States, in execution of process of a federal court, is, without regard to the citizenship of the parties, within the jurisdiction of the federal courts, and may be removed thither from a state court, although the complaint is so framed as to conceal the fact that the defendants were acting as federal officers it that fact must necessarily be shown by the plaintiff upon the trial and is disclosed by the petition for removaJ.. .
At law. An action by Mary C. Wood to recover damages for false imprisonment. Motion to remand. Denied. Brents & Clark and P. J. Cavanaugh, for plaintiff. Ben Sheeks, D. J. Crowley, and J. L. Sharpstein, for defendants. HANFORD, District Judge. This action was commenced in the superior court of this state for the county of Walla Walla. The complaint charges that the defendants, conspiring together to oppress and injure the plaintiff, wrongfully assaulted, arrested, and imprisoned her, and against her will transported her from her home, in Walla Walla county, to Seattle, and other places in this state, thereby compelling her to employ counsel and give bail and incur expense in order to regain her liberty and return to her home; and subjecting her to other injuries and indignities not specifically described. The defendants in due time each ftled a petition and bond for removal of the case to this court, and caused a transcript of the record to be ftled, and the case docketed. In their petition they allege that the defendant Drake is the United States marshal for the district of Washington; that the defendant Parker is his depu. ty; and that the acts alleged in the plaintiff's complaint were com· mitted by them in execution of process of the United States court, lawfully.issued, requiring them to apprehend and keep the plaintiff in custody until lawfully discharged; and for that reason they assert that the action is one arising under the laws of the United States.. The plaintiff has answered said petition, practically admit'ting the, particular facts set forth therein, but denies that she is 'the person whom the marshal was required to arrest under the process described in the answer. On the ground that the complaint does not disclose any fact upon which the jurisdiction of this court can be predicated, the plaintiff relies upon the decisions of the supreme court in the cases of Ten'nesseev. Bank, 14 Sup. Ct. 654, 152 U. S. 454; Chappell v. Waterworth, 15 Su.p. Ct. 34,155 U. S. 102; Cable Co. v. Alabama, 15 Sup. Ct. 192, 155 U. S. 482; Land Co. v. Brown, 15 Sup. Ct. 357, 155 U. S. 488,-and denies that this court has jurisdiction of the action, .and lias moved to remand it to the state court, in which it was orig'inally commenced. The case, as stated in the pleadings, presents issue, as the lawful or unlawful of the United' v.70F.no.l0-56 ' .
marshal, when acting as the arm of the federal courts in this state, in executing their precepts. Upon the tria1, facts must necessarily be ShOWll by the plaintiff, in proving her side of the case, sufficient to raise the issue. Therefore the action is one which could have been brought originally by the plaintiff in this court, without changing the nature of the action, or pleading additional facts. A full and clear statement of the transactions referred to in the complaint would have been sufficient to support the jurisdiction of this court. An action against a United States marshal and his deputy, growing out of their acts .in executing the process of a court of the United States, is, reg!lrdless of citizenship of the parties, within the jurisdiction of the United States circuit court for the proper district; and this is so evell When there is no disputed question of federal law in the case (Bock v. Perkins, 139 U. S. 628, 11 Sup. Ot. 677; Grant v. Bank, 47 Fed. 673); and I hold that a case in which an attack upon the official acts of a United States marshal is made covertly, by suppressing the facts which constitute an essential part of the res gestre in the first pleading, is none the less a case arising under the laws of the United States. If the case is one which the plaintiff might have brought originally in a circuit court of the United States, the defendant cannot fairly be deprived of his right to remove the case into the federal court by the ingenuity of attorneys in pleading. In such a case, :'Yhen the complaint fails to set forth with sufficient fullness the facts upon which the plaintiff's case is founded, the PetitiQn forremo",:al may be considered by the federal court in passing upon jurisd.ictional questions., Supreme Lodge v. Wilson, '14 o. O. A. 264, 66. Fed. 785. The decisions of the "supreme court affecting the queljltion under consideration must be classified. .'.rhere is one line of cases ipwhich the doctrine is main,tained that a case is not within tbe, jurisdiction of the circuit court of the g,iving to the case the charof a caS('! arising under the constitution, law,lil, or treaties ,of the United States, .unless the pleadillgs present an actual disputed question, not previously tp.e court, a,s to the ,application, or interpretation ofl\1om.e. specific provi.sion of the f,ederal constitution or of s,ome treaty made by the United. States. For example,>se"e Water 00. v. 96 lJ. S. 199-204; Starin v.New York, U5l]". S.257, 6S,up, Ct. 31;Oarson 'v. Dunham,121 U.S. 421-430, 7 Sup. Ot. 1030. anotherUne of cases in' which the supreme court hll.s steadfastly maintained that all ",hich bring into question the aGts or rights of corporations created by or representing the natio'¥al. government are cases,arising l1nder the ()ftp.elJnited although, -only displjted" questi()ns t9 be determined therein, may be governed by the rulesof the common law or localstatutes<or usages. ,Mere collection, case's, and 'actiJ;ns fo,r tlie ,recoveryper'sonal, injuries, , ,be tr}ed and without requiring the :court to any question of )a:w, have never"theless. been. hell} to be arising \lnderthe of the United States by reason ofthe character or capl\city otitheparty or on. one side. For example, see Pacific Railroad Remtlval Oases, lUi
STATE OF FLORIDA V. CHARLOTTE HARBOR PHOSPHATE CO.
U. S. 1, 5 Sup. Ct. 1113; Bock v. Perkins, 139 U. S. 630, 11 Sup. Ct. 677; Hailroad Co. v. Amato, 144 U. S. 465-475, 12 Sup. Ct. 740; Railroad Co. v. Cox, 145 tJ. S. 593-608, 12 Sup. ci. 905. The case at bar belongs to the class of cases last above cited. There is another important principle often enunciated with emphasis in the decisions of the supreme court, which applies to this case. It is this: The national government must be permitted to exercise its power within the states through its own agencies. The national courts are the proper tribunals for adjudicating all questions as to the validity of their own process, and the lawfulness of the acts of their own ministers in executing the same. Martin v. Hunter, 1 Wheat. 304; McCulloch v. Maryland, 4 Wheat. 316; Cohens v. Virginia, 6 Wheat 264; Weston v. Charleston, 2 Pet. 44:9; Ableman v. Booth, 21 How. 506; Collector v. Day, 11 Wall. 113; Tennessee v. Davis, 100 U. S. 257; Ex parte Siebold, rd. 371; Ex parte Yarbrougll, 110 U.S. G51, 4 Sup. Ct. 152 ; In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658. The motion to remand is denied.
STATE OF FLORID.1\. v. CHARLO'.rTE HARBOR PHOSPHATE CO.
(Circuit Court of Appeals, Fifth Circuit. December 3, 1895.)
TERMS OF COURT-ADJOURNlIENT.
A term of a United States circuit court may be adjourned, in the discretion of the presiding' judge, to a distant day, and its regular and continuous session may be resumed on such day, as a part of the same term, though another term of the court has been held, during the adjournment, at another place. The rules of the circuit court of appeals in regard to the return day of appea]s and to the filing of the transcript are directory, and it is within the sound discretion of the court to relieve parties who have not complied therewith.
RULES OF COURT.
PRACTICE ON ApPEAL-FILING TnANSCRIPT-RELIEF FROM DEFAULT.
After the dismissal of a bill by the circuit court, and at the same term, the complainant filed in open court a prayer for an appeal to the circuit court of appeals, which was allowed, and an order made allowing the appellant 90 days from a day named to file the record, but fixing no return day. The respondent at the same time consented to the filing of an informal appeal bond. The order was not filed with the clerk of the appellate court, and after the expiration of 30 days the appeal was docketed and dismissed by the clerk, on the respondent's application, under 'rUle Hi of the circuit court of appeals. The appellant, within the 00 days allowed by the order, presented a transcript of the record, but the clerk declined to file the same or docket the cause. Held; that although the requirements of rules 14 (11 C. C. A. civ., 47 Fed. Vii.) and 16 (11 C. C. A. cvi.,47 Fed. vii!.), as to fiXing a return day and filing the order of enlargement, had been disregarded, for which the appellaI:lt was responsible, yet as the transcript had been presented at and before the first term of the appellate court after the appeal, and as It appeared that no injury would result from th.enonenforcement of the decree, the appellant should be permitted to docket the cause, on condition of paying all costs of the appellate court.
Appeal from the Circuit Court 9f the United States for the Southern District of Florida. .