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vent the transfer of this action to the United States courts, and that the controversy in this action is in reality and in substance between the defendant and the said Charles Cochran, who are citizens of different states; to-wit, the defendant is in law a citizen of New York, and said Cochran a citizen of Ohio."
The petition then concluded with the proffer of a bond and a prayer for removal of the cause in the usual form. The court refused to remove the cause, and the trial proceeded and resulted in a verdict and judgment for the plaintiff, which judgment is brought here by the present writ of error.
The question for our consideration is whether, upon the petition as presented, and the pleadings as they then stood, the application for removal should have been granted. The first ground of removal set forth in the petition was, in effect, that the defendant had a defense arising under section 739 of the Revised Statutes of the United States, which defense was that the judgment sued on was absolutely void for want of jurisdiction in the court, because that section forbids any suit to be brought by any original process before either of the United States courts against an inhabitant of the United States in any other district than that of which he is an inhabitant, or in which he shall be found at the time of serving the writ; and it is averred that the suit was by original process, and that said process was never served personally upon the defendant in Ohio, (the defendant being a New York corporation,) or upon any of its officers there, and that the defendant was never an inhabitant of Ohio.
This allegation of a defense under the section referred to is clearly evasive and inconsequential. It is not necessary that a corporation should be an inhabitant of a state, or should be found therein, or should be personally served with process through its officers, in order that the circuit court of the United States sitting in that state may have jurisdiction of a personal suit against it. It is well known that corporations of the character of the defendant, desirous of doing business in a state other than that in which they have their domicile, are generally required to have an agent therein to receive service of process for them. This is exacted as a condition of their doing business in such state, and herein a corporation differs from an ordinary "inhabitant” of a state, as that term is used in said section 739. This mode of acquiring personal jurisdiction of a foreign corporation applies to the federal courts as well as to the state courts. See Ex parte Schollenberger, 96 U.S. 369. Again, jurisdiction may also be acquired by the actual appearance of such a corporation to a suit brought against it in the*United States circuit court. So that merely allege ing that the defendant was not an inhabitant of Ohio, and was not found there, and was not personally served with process by itself or its officers, was not sufficient to raise a defense under section 739 of want of jurisdiction in the circuit court, without also negativing service of process on an agent of the defendant in Ohio, and the actual appearance of the defendant to the suit; for want of jurisdiction, set up to avoid a judgment, must be shown with the greatest certainty. The petition of removal is very careful not to negative these important contingencies, and that, in the face of the allegation of the complaint that the defendant did appear to the suit, and did answer the petition and appear at the trial. Hence we say that the allegation of a defense under the statute is clearly evasive and inconsequential, and we are not at all surprised to find that when the record of the Ohio suit was produced it showed that the defendant's agent was served with process, and that the defendant did actually appear to the suit and answer the petition, and did appear at and contest the trial, which lasted for a fortnight.
Reading the petition for removal, therefore, in the light of the pleadings on file when it was presented, we are satisfied that the first ground of removal set out therein was insufficient.
The second ground was, in effect, that the assignment of the judgment by Cochran to Ford was colorable merely, and that the real party in interest was Cochran, who was a citizen of Ohio, and as to whom the defendant, being a citizen of New York, was entitled to a removal of the cause, and should not be deprived of its right by the fraudulent assignment. The plain answer to this position is that the action was nevertheless Ford's, and as against him there was no right of removal. If he was a mere tool of Cochran, and if the latter was the person really interested in the cause, the action could not have been sustained, for the Code of Procedure of New York declares that "every action must be prosecuted in the name of the real party in interest,” except in a few cases not including this. And not alone in New York, but any. where, if it could be shown that the assignment was fraudulent as against the defendant, it would be void, and this fact would be a defense to the action brought by the assignee. We know of no instance where the want of consideration in a transfer, or a colorable transfer, of a right of action from a person against whom the defendant would have a right of removal to a person against whom he would not have such a right, has been held a good ground for removing a cause froin a state to a federal court. Where an assignment of a cause of action is colorably made for the purpose of giving jurisdiction to the United States court, the fifth section of the act of congress of March 3, 1875, relating to removals, has now given to the circuit courts power to dismiss or remand the cause at any time when the fact is made to appear. And by analogy to this law, it may, perhaps, be a good defense to an action in a state court to show that a colorable assignment has been made to deprive the United States court of jurisdiction; but, as before said, it would be a defense to the action, and not a ground of removing that cause into the federai court. We think, therefore, the second ground of removal was also insufficient.
It is suggested, however, that a suit on a judgment recovered in a United States court is necessarily a suit arising under the laws of the United States, as much so as if the plaintiff or defendant were a corporation of the United States; and hence that such a suit is removable under the act of March 3, 1875. It is observable that the removal of the cause was not claimed on any such broad ground as this; but, so far as the character of the case was concerned, only on the ground that the defendant had a defense under section 739 of the Revised Statutes, specifying what the defense was; and we have already shown that that ground of removal, as stated in the petition, was insufficient. But, conceding that the defendant is now entitled to take its position on the broader ground referred to, is it tenable and sufficient for the purpose?
What is a judgment, but a security of record showing a debt due from one person to another? It is as much a mere security as a treasury note, or a bond of the United States. If A. brings an action against B., trover or otherwise, for the withholding of such securities, it is not therefore a case arising under the laws of the United States, although the whole value of the securities depends upon the fact of their being the obligations of the United States. So, if A. have title to land by patent of the United States and brings an action against B. for trespass or waste, committed by cutting timber, or by mining and carrying away precious ores, or the like, it is not therefore a case arising under the laws of the United States. It is simply the case of an ordinary right of property sought to be enforced. A suit on a judgment is nothing more, unless soine question is raised in the case (as might be raised in any of the cases specified) distinctly involving the laws of the United States, -such a question, for example, as was ineffectually attempted to be raised by Che defendant in this case. If such a question were raised, then it is conceded it would be a case arising under the laws of the United States.
These considerations show a wide distinction, as it seems to us, between
the case of a suit merely on a judgment of a United States court, and that of a suit by or against a United States corporation; which latter, according to the masterly analysis of Chief Justice MĀRSHALL in Osborn v. Bank, 9 Wheat. 738, is pervaded from its origin to its close by United States law and United States authority.
Without pursuing the subject further, we conclude with expressing our opinion that this last ground of removal, like those already considered, was insufficient.
The judgment of the supreme court of New York is atirmed.
(114 U. S. 436)
DODGE and others 0. KNOWLES.
(May 4, 1885.) 1. APPEAL-BOND GIVEN AFTER THE TERM-EFFECT AS TO JURISDICTION.
The allowance of an appeal by the court while in session, and acting judicially at the term in which the decree was rendered, constitutes a valid appeal, of which the appellee is bound in law to take notice. The docketing of the cause in time perfected the jurisdiction of the supreme court. The giving of the bond is not es.
sential to the taking, though it is to the prosecution, of the appeal. 2. SAME-Citation-Effect—NOTICE TO APPELLEE.
The citation, if security is taken out of court or after the term, is only necessary to show that the appeal which was allowed in terma has not been abandoned by the failure to furnish the security before the adjournment. It is not jurisdictional. Its
only purpose is notice. 3. SAME-ORDER ON APPELLEE TO APPEAR AND ARGUE.
An order on appellee to appear and argue the cause, if he see it, is of itself the legal equivalent of a citation for all the purposes of such an appeal. Appeal from the Supreme Court of the District of Columbia. On motion to set aside a judgment entered April 13, 1885, and to dismiss the appeal.
Chas. M. Matthews, for motion. J. Holdsworth Gordon, in opposition. * WAITE, C. J. The facts on which this motion rests are these:
The final decree in the cause was rendered February 23, 1881. At the foot of the decree, and as part of the original entry, is the following:
“From this decree the defendants pray an appeal to the supreme court of the United States, which appeal is hereby allowed. “By order of the court.
D. K. CARTTER, Ch't Just."
Security upon the appeal was not taken until November 5, 1881, which was after the term when the decree was rendered. No citation was served on the appellee, but the appeal was duly docketed in this court November 11, 1881. The cause was called in its regular order for the first time January 9, 1885, and on that day submitted on printed brief by the counsel for the appellants, no one appearing for the appellee. On the seventeenth of January, the court, of its own motion, ordered “that this cause be reargued, either orally or on printed briefs, to be filed on or before the first Monday in March next." The purpose of this order was to allow the appellee an opportunity to be heard. A copy was served on him personally on or about January 21st, and he wrote the clerk, under date of February 28th, as follows: “Having been advised by counsel that no appeal has ever been perfected to the supreme court of the United States in the case of which you write, I would inform you that I rospectfully decline to authorize an appearance to be entered in that court for me in that cause for any purpose whatever."
On March 2d the appellants again submitted the cause on a printed brief, no one appearing for the appellee. The case was taken under advisement and held until April 13th, when the decree of the court below was reversed, and an entry made to that effect. On the twentieth of April, the appellee
came, and entering an appearance only for the purpose of his motion, moved to set aside and annul the judgment of reversal, and to dismiss the appeal, (1) because no citation has been issued or served; and (2) because the value of the matter in dispute did not exceed $2,500. As to the last ground of the motion, it is sufficient to say that the decree appealed from was for more than $2,500, and it charged the property of the appellants with the full amount. l'pon the face of the record, therefore, our jurisdiction is complete. Such being the case, we are not willing to consider extrinsic evidence at this late day for the purpose of ascertaining whether the actual value of the property from which the collection Taust be made is sufficient to pay the whole debt or not.
The allowance of the appeal by the court while in session and acting judi.. cially at the term in which the decree was rendered, constituted a valid appeal, of which the appellee was bound in law to take notice. The docketing of the cause in time perfected the jurisdiction of this court. The giving of the bond was not essential to the taking, though it was to the due prosecution, of the appeal. It was furnished and accepted in this case before the cause was docketed here. Had this not been done we would have given the appellants leave to supply the omission before dismissing the appeal. All this was decided, on full consideration, in Peugh v. Davis, 110 U. S. 227; S. C. 4 SUP. CT. REP. 17.
It has also been decided that if an appeal was allowed in open court during the term in which the decree was rendered, a citation was required, as matter of procedure, if the security was not furnished until after the term; but in Railroad Co. v. Blair, 100 U. S. 662, it was said: “Still an appeal, otherwism regular, would not probably be dismissed absolutely for want of a citation, if it appeared, by clear and unmistakable evidence, outside of the record, that the allowance was made in open court at the proper term, and that the appellee had actual notice of what had been done."
The citation is intended as notice to the appellee that an appeal has been taken and will be duly prosecuted. No special form is prescribed. The purpose is notice, so that the appellee may appear and be heard. The judicial allowance of an appeal in open court at the term in which the decree has been rendered is sufficient notice of the taking of an appeal. Security is only for the due prosecution of the appeal. The citation, if security is taken out of court, or after the term, is only necessary to show that the appeal which was allowed in term has not been abandoned by the failure to furnish the security before the adjournment. It is not jurisdictional. Its only purpose is notice. If by accident it has been omitted, a motion to dismiss an appeal allowed in open court, and at the proper term, will never be granted until an opportunity to give the requisite notice has been furnished, and this, whether the motion was made after the expiration of two years from the rendition of the decree or before. Here, before the cause came on for final hearing, notice was given the appellee, by order of the court, that the appeal taken in open court was being prosecuted, and that a reargument at an appointed time was desired. In response to this notice the appellee declined to appear, not because he had not been served with a citation, but because no appeal had been perfected. Had he complained of a want of citation, the omission might have been supplied if, on consideration, it should have been deemed necessary. But the order which was served on him to appear and argue the cause if he saw fit was of itself the legal equivalent of a citation for all the purposes of this appeal.
The motions are denied.
(116 U. S. 45)
GWILLIM 0. DONNELLAN and another.
(May 4, 1885.) MINING CLAIMS-PRIOR LOCATION-RIGHTS OF PARTIES.
If a discoverer has himself perfected a valid location on account of his discovery, no one else can have the benefit of his discovery for the purposes of location adverse to him, except as a relocator after he has lost or abandoned his right. In Error to the Circuit Court of the United States for the District of Colorado.
E.T.Wells, for plaintiff in error. Enoch Totten and C. H. Toll, for defendSants in error.
•WAITE, C. J. This is a suit begun July 7, 1881, under section 2326 of the Revised Statutes, to determine the rights of adverse claimants to certain mining locations. Donnellan and Everett, the defendants in error here, and also the defendants below, were the owners of the Mendota claim or location, and Gwillim, the plaintiff in error here, and the plaintiff below, the owner of the Cambrian. The two claims conflicted. The defendants applied, under section 2325, Rev. St., for a patent of the land covered by their location, and the plaintiff filed in due time and in proper form his adverse claim. To sustain this adverse claim the present suit is brought, which is in form an action to establish the right of the plaintiff to the premises in dispute, and to the poss ssion thereof as against the defendants, on account of a “prior location thereof as a mining claim in the public domain of the United States."
The question in the case arises on this state of facts:
Upon the trial the plaintiff gave evidence tending to show that Isaac Thomas, on the sixteenth of May, 1878, discovered in the public domain, and within the premises described in the complaint, a vein of rock in place, bearing gold and silver, and sunk a shaft to the depth of 10 feet or more, to a well-defined crevice, and located the premises under the name of the "Cambrian Lode," and performed all the acts required by law for a valid location. The plaintiff got his title from Thomas. In the answer of the defendants they set up title under the Mendota claim, located, as they allege, November 19, 1878. The plaintiff, in presenting his case to the jury, stated in effect that, after the location of the claim by Thomas, and before his conveyance to the plaintiff, one Fallon instituted proceedings to obtain a patent from the United States for another claim, including that part of Thomas' claim wherein was situated the discovery shaft sunk by him; that no adverse claim was interposed, and Fallon accordingly entered his claim and obtained a patent therefor; and, before any new workings or developments done or made by Thomas upon any part of his claim not included in this patent, the defendants entered therein and located the same as a mining claim in the public domain. Upon this statement the court “ruled that inasmuch as that part of the claim of said Thomas, wherein was situated his discovery shaft, had been patented to a third person, the plaintiff was not entitled to recover any part of the premises, and instructed the jury to find for the defendants.” This instruction is assigned for error.
Thomas made his location as the discoverer of a vein or lode within the lines of his claim. He made but one location, and that for 1,500 feet in length along the discovered vein. All his labor was done at the discovery shaft. There was no claim of a second discovery at any other place than where the shaft was sunk.
Section 2320 of the Revised Statutes provides that “a mining claim located after the tenth of May, 1872,
shall not exceed one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.” Section 2322 gives “the locators of all mining loca