180
FEDERAL REPORTER,
vol. 4.0·.
United States, either 'party may at any time thereafter, as ofconrse, file the transcript required by law this court, and serve written notice of such filing upon the adverse party or hil;! attorney; and upon filing in this court satisfactory evidence of the service of such notice the clerk shall enter the action upon his register, and thenceforth the provisions of rule 78 of this court shall be applicable thereto. and the same proceedings may be thereafter had as if the tr,anscript had been filed by the party removing the case at the time prescribed by law." Rule.78 provides in regard to amendments of pleadings, etc. Rule 79 was adopted in March, 1879. It was made under the authority of section 918, Rev. St., which provides: '''l'he several circuit and district courts may from time to time. and in any manner not inconsistent with any law of the United States, or with any rule prescribed by Lhe supreme court under tl1e preceding section,make rules and orders dh'ecting the ret.urn of writs and process, the filing of pleadings. the taking of rules, the entering and making up of judgment/Jby default, and other matters in vacation, and otherwise. regulate their own practice as may be or convenient for the advancement of justice and the prevention of delays in. proceedings." . '. '. Rule 79 was the outgrowth of the ca&e of Mining 00. v. Bennett, 4 Sawy. 289, and was intended to cover that and all simHar cases.where long <;Ielay might occur by reason of the neglect of the .removing party to file the record in this court. As said by the court in that case: "n is trae, as urged by defendant. that the statute makes no provision for filing the copy of the record before the first day of the next succeeding term, or by any other persQn than the party removing the, cause. But it is also true that there is nothing prohibiting the filing of the record at an earlier day, ,or by any party interested other than the one removing the The reasoning of the court in that case is applicable in the cases before us. The next term or session of this ,court begins November 4th. The petitions and bonds for removal were filed July 3d. Hence, if defendants' contention is correct and tenable, there must. he a delay of four months in these cases; and this merely for delay, for, as we have seen, upon examination of the records, the cases would have to be remanded whenever the court should take them up and consider them, fOUf or five months hence. But it is conceded that for some purposes the circuit court may and will as!lume jurisdiction'of a case before the record is filed by the removing party, and will issue such writs 'and make such orders as maybe necessary to preserve the rights of the parties; and thisJrom the apparent necessity of preserving those rights. That in such cases this court may and will issue or discharge ,writs: of attachment, solve injunctions, appoint receivers or discharge them, issue comnaissions to take testimony; in short, will exercise its highest authority and pow. ers, and virtually assume full jurisdiction of the case and parties; This; in effect, is the substance of the authorities cited in Railway Co. v. bumb81' Co. ,supra. But will or can a court properly exercisetheae high powers and functions without first inquiring and deterrniningwhether affecting the or not it has jurisdiction to make any (mlers in.. the rights of the parties? In the. cases cited in Railway 00. v. Lumb81' Co.,
DELBANCO II. SINGLETARY.
181
BUpra, it is evident that the record in each case, to a certain extent, and
in some form, fnlly or in brief, and by some means, must have been laid before the court, before the court could have been asked to make any orders therein. And why should a court hesitate, or decline to look fully into the record, in the first instance, and determine whether or not it has any jurisdiction of the case, when, months afterwards, it must make this examination, and, failing to find jurisdictional facts, must vacate all orders theretofore made, and remand the case to the state court? Jurisdiction, when challenged, is the first and fundamental question to be settled in all cases, and without it all proceedings are vain. Without the aid of rule 79 we would have little hesitancy in holding that these motions to remand could now be properly entertained and heard by the court. We think the statute directory, not mandatory, in requiring the defendant to file a copy of the record in the circuit court ".on the first day of its next session." In Railroad Co. v. Koontz, BUpra, it was held that, if the removing. party did not file a copy of the record on the first day of the term, it was inthp, discretion of the court to permit it to be thpr·:after on cause shown. If the statute is directory as to time, is it not.equaJly so as to person? It certainly does not prohibit the filing of the record by any person interested. other than. the .defendant, or at a date earlier. than tpe first day of the next session of court. . . Rule 79 ()f this court has been in effect for 10 years. It is. believed that it is J:}ot opposed to, or in contravention of, any statute, or of the rights of any party litigant. On the contrary, its sole object and purpose is .to carry out the express terms of the statute "for the advancement of justice, and the prevention of delays in proceedings." The practical working of the ru.le has been most salutary, and demonstrative of its wisdom, utility,and propriety.. It works no hardship upon anyone not seeking delay only; and courts will not brook wanton delay in proceedings before them, when the opposite party is urging audience and e are not disposed to vacate or rescind a rule believed to be wholly lawful, and in harmony with the statute, the practical effect of which is only good, and in aid of "the advancement of justice and the prevention of delays in proceedings," in this court. Let the cases be xemanded to the proper state court.
:FEDE:RAL REPOBTER, vol. 40. AME1UOAN LOAN & TRUST CO. fl. EAST
&
WEST
R. CO>tt ale
(Otrcuit Oourt, N.D. Georgia., October 30, 1889.) 011' JUDGE OJ!' ANOTHER DISTRIC'l'LEAVETO SUE RECEIVER. '
Rev.St.rr. S; § 603, provides that "when the office of districtJ'udge ie vacant in any a state containing two, or more districts, the ju ge of the other or either of the districts may hold the d,istrict court or the circuit court; in case of the sicknes!lor'absence of the other judges thereof, in the district where tb.e vacancy OCCU:\lS, anflllischarge all t1:le duties of judge of such district.during such vacan'cy. tI .' HeZd,' that it isonlywnetl tlle office of district judg'e of one district is vacant that the judge of another district has authority to discharge duties in the fanner district, and a leaye granted by the jUdge of another district to sue a receiver, tbe judge ot the district being out of the state, is void.
To the HonOrable, the Judgea of the Oircuit Oourt of the United Statea for said District: of Charles P. Ball, receiver, appointed by the Honorable Don A. Pardee, re!lpectfully shows uIito your honors that one H. F. Alsabrook has'l:>rodght suit for personal damages against your petitioner in the superiC>l', court of Polk county; in the state of Georgia, and in the petitionfile<l'thereinthe said AlSabrook alleges thaton the 17th day of July, 1889" }}e obtained fromthlfHonorable Emory Speer the following order: granted as prayed, the judge of the northern district being out of the state. July 17th, SPEER, U. S. Judge. "-all of which is Iho're funyshown in of the petition which was served upon one of the agents employed by your petitioner in conducting and operating 'the said railroad, hereto. 'Your petitioner further shows that'lieihas been informed by the employes. opera.ting the said railroad the alleged iIijuries were received from no fault or negligence on their part; that the plliintiff in said petition is a resident citizen ofClebtirne county in ,thfntate of Ala.bama; and that the said alleged injUrieS: Were received within the of Alabama; and petitioner the said' H. Alsabrook may be cited to appear beforeyout' hOrlors;at such thnlf'atid: place as your .honors may direct, to show cause;: if any he has, :'*l1y said alleged order, granting leave to bring said suit, should not be revoked, and 'that, pending said notice, the said H. F, Alsabrook may, by the order of your honors, be restrained from further prosecuting said suit until the hearing and determination of this petition. CHAS. P. BALL, Receiver. Alexander T. Lo1!-don, for receiver. T. N. Broyles, for Alsabrook. PARDEE, J. This cause came on to be further heard upon the petition of Charles P. Ball, receiver, in relation to the suit brought by one H. F. Alsahrook against the receiver in the superior court of Polk county in the state of Georgia, and was argued by Mr. Alexander T. Loudon for the receiver and Mr. T. N. Broyles for Alsabrookj whereupon, the court considering that under the proper construction of section 603 of the Revised Statutes ,it is only when the office of district judge of the
:STltO,NG fl. UNITED STAT.ll&
183
northern district is; vacantthat the judge of the southern district has authority, under said section, to discharge judicial dutiesinthe northern district, it is ordered and adjudged that the leave granted by the judge of the district to said Alsabrook to institute suit against the receiver in this case be, and the same is, declared null, and of no force and effect. It is in this case that ,the said receiv,er may bring bill with suitable averments in the United States circuit, court for thes()uthern division of thenorthem district of the state of Alabama, which c'onrt appointed Charles P. Ball receiver,against the said H. F. Alsabrook, settingforth thefactsin the case, and praying for injunction to restrain the further prosecution of the suit instituted by the Said H. F. Alsa,brook in the superior court of Polk county for the'state of Georgia, all as authorized by section 3 of the act of congress,a'pproved March 3, 1887, entitled "An aCt to the jurisdiction of the circuit court 'of .united States, and for other purposes." .
, STRblotG (C'&rcuit
fl. UNITED STATES.!
court, B,·D. Alabama.
Juue 17j 1889.) ., ;
J;:'
»yact 90ng. Marchl!, 1887, court is gtvep conc1,m'el1tjul'lsdictfOn with the cQurt ot.claims ".Where tbeamount of the claim does not exceed In,OOO,'' and the sam.e right to-'apPeahnd'take writs of errOl'ls.i·given to theplaintilI.or .the .. United'States as "now Ireserved in the statutes of the :'United Stl/ote& in that behalf made. : lIeW, that t.o as reservillg ,right to appeal. aDd take writs of error were thoBe relatmg to appeals andWr1t8 Of error frOm judgmllltlwpf the of clai!W! to the supreme court, and that in sucl/. cases the cirouit courts have no jurjsdlCtion of appeals from, and writgof error to, the district courts.U,'S. v. Dams, 9 Bup. Ct. Rep. 657, followed. .
{}OURT-(.,"L.UMSA.GAINST UNITIID STA.TES..
Appeal from, .and Error to, District Court. 34 Fed. Rep. 17·. On motions to dismiss the appeal and writ of error. Goo. H. Patrick, for appellant. M. D. Wicker8ham,U. S. Dist. Atty. Before LAMAR, Justice,.. and P ABDEE, J. LAMAR, Justice, (orally.): .The account which foundation of the actionhav:ing been previously made out, submitted, to, and approved by, the district court, was presented for payment to the tNasury department. The comptroller oftbat department allowed a. portion of the aocount, but disallowed the balance. To recover this balanQEl suit was brought. TheconTt below found that the balance due, ;after deducting . the SlUll' paid by the government, (which was.cr-editeduponthe account,) was $181,' ,and renderedljudgment accordingly. From this the 'ptesebt ·a.ppeal Rnd 'writ of en'or are ;taken. The ·motionto. dj,sm.iss rests upon two 'We deem it necessary to consider only the
184
J'EDERAL REPORTER,
vol. 40.
first ground, viz., that neither an appeal nor a writ of error will lie to the circuit court from a judgment of a district court in cases brought under the statute of March 3, 1887. The appellant bases his claim to the right of or writ of error, as the case may be, on the following language of the act, (section 9:) "That the plaintiff or the United States, in anysuU brought under the provisions of this act shall have the same rights of appeal or writ Of error as are now rl'served in the statutes of the,"United States in that behalf made, and upon the conditions and limitlltions thf'rein contained. The modes of procedure in claiming and perfecting. an appeal or writ of error shall conform in all respects. and as near as may be, to the statutes and rules at' court governing appeals and writs of error' in likecaUlles·." 24 U. S. St. at Large, 507. The questiOn to be considered and determined is, what statutes are here referred to as reserving .the right of appeal to the plaintiff or to the United States? Are they the generally governing appeals arid writs of error, or are they those which specially govern writs of error and appeals in the court of claims? The expressly declared purpose of the act is to give to the United States district and circuit courts concurrent jurisdiction with the court of claims, not only as to the classes of caE'es already within its cognizance, but also as to the new classes of cases embraced within the enlarged jurisdiction conferred by the act under consideration. The fourth section of the act provides- . "That the jurisdiction of the respective courts of the United States pro.ceeding under this act. including the right of exception and appeal. shall be .. governed by the law now in force. in 110 far as the same is applicable and not inconsistent with the provisions oftbisact·; and the cour/Se of procedure shall be in accordance with the established rules of said respective courts. and of such additions and modifications tb,ereofas said courts may adopt." We think the general scope .andpurpose of the act negatives the contention that any larger right of appeal is allowed in the district or circuit courts than is by the then existing statutes allowed in the court of claim8. In other words, the peculiar nature of this enactment, and its special object, giving, as it does, a new field of jurisdiction to the United States , courts, making it the same as thejurisdiction of the court ofclaims, within a limited amount, and the indications of the intention ofcongress found in the context of the act, restrain the general words of section 9, relied upon by the attorney for appellant. The supreme court of the United States has already passed upon the question of the interpretation of this , section in U. S. v. Davis, and U. K v. Schofield, which were considered and determined together. The 'decisions in those cases were announced on the last day of the late term of the court, and will be found in 131 U. S. 36, 9 Sup. Ct. Rep. 657. Schofield and Davis each filed their respective petitions in the dilltrict court of the United States for the district of Maryland. under the act of 1887, and eachohtained judgment for 825. A motion was filed by the appeUeein each of those casell to dismiss the appeal upon the grounds that an appeal would not lie to the supreme court from a district court performi'ng the appropriate duty of the district court; that the supreme court had no jurisdiction to re-examine judgments of the circuit or district courts since the act of February