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the same power to execute such judgment and punish as a contempt any willful disobedience of its mandate as it would have if the judgment were originally its
(Syllabus by the Court.)
In Equity. Motion to discharge
HANFORD, J. This is a proceeding growing out of a suit in equity brought by the United States to protect certain Indians in the enjoyment of fishery privileges guarantied to them by the government in a treaty made with them. The original case was commenced July 7, 1884, in the district court of the fourth judicial district of the territory of Washington, holding terms at Yakima. The final decree in the case was rendered by that court in the year 1887, by which decree the court granted a perpetuul injunction against the defendant, Frank Taylor, forbidding the doing by him of certain acts, among others, the obstructing of a way across premises of which he was owner, and which he has since conveyed to 0. D. Taylor, who is accused in the present proceeding of violating the injunction by obstructing said way. To a rule to show cause why he should not be punished for contempt, the respondent has interposed a motion by which he asserts that, as to said case, this court is not successor to the court which granted the injunction, and denies that this court has any power to punish him for a contempt of court committed by disobeying an order of the territorial district court, or to execute the decree of that court. It is conceded that the case is one of which this court might have had jurisdiction under the laws of the United States had it (the court) existed at the time of the commencement of the suit. But it is contended that, because a final decree had been previously rendered, the case had terminated, and was not a pending case at the time the territorial court passed out of existence upon the admission of the state of Washington into the Union; and, therefore, in respect to this case, this court is not the successor of the territorial court. The decision upon this point involves simply a definition of the word "pending” as used in the twenty-third section of what is commonly called the “Enabling Act.” 25 St. U. S. 676.
In my opinion this act, when all its provisions are considered, manifestly shows that congress intended to fully protect and preserve not merely the rights of parties in a few select and especially favored ones of the cases commenced in the territorial courts, but every right of every party in every case which at any time had been or should be commenced in those courts during their existence; and the words "all cases, proceedings, and matters * * pending," used in the act, must be construed to embrace all cases, proceedings, and matters initiated in the territorial courts, and in which at the time of the actual transformation of the territorial judicial system into the state and national systems there should be yet any vitality, force, or virtue. I have heretofore decided, in a case which had proceeded to judgment in a territorial court, that the court,
which, as to that case, was successor to the territorial court, should
proceed with it, from the precise point to which it had already progressed, exactly as if the case had been commenced and proceeded with to the same point in that court. This view is supported by the court of appeals of New York in the case of Wegman v. Childs, 41 N. Y. 159, and in that case other decisions are cited and followed. Certainly rights established by a final judgment ought not to be held to have been forfeited or sacrificed by this statute, if by any reasonable or fair construction of its terms a different conclusion can be arrived at. The construction I have given to the act does lead to a different and more satisfactory conclusion. The construction contended for by counsel for the respondent does not, for the word "pending" is used in the clause descriptive of the class of cases and proceedings to be transferred to the state courts, and bears exactly the same relation to those cases that it does to the cases and proceedings which are transferable to the national courts, and it is not possible to exclude this court from taking jurisdiction of a case on the ground that because it had proceeded to judgment in a territorial court it then ceased to be a pending case, and yet hold that by virtue of this act of congress the courts of this state could take cognizance of the same case. I hold, therefore, that the case has been lawfully transferred to this court, and also that being so transferred this court, of necessity, must adopt as its own all the proceedings and orders of its predecessor in the case, including the judgment, and must exercise the same powers which that court would now have if it had continued to be, including the power to punish a violation of the injunction. The motion to discharge the rule is therefore denied.
HAMILTON v. THE WALLA WALLA.
(District Court, D. Washington, N. D. August 26, 1890.)
1. SUCCESSOR OF TERRITORIAL COURTS-ADMIRALTY-APPEAL.
An admiralty cause having been appealed to the supreme court of Washington Territory, but not docketed that court prior to the admission of the state into the Union, must necessarily be transferred from the the territorial district court, which rendered the decree, to this court, which is as to all admiralty causes successor to the territorial court of original jurisdiction. Failure of the appellant to cause the transcript to be sent up and have the cause docketed in the circuit court before the beginning of the term is not such laches as to be deemed an abandonment of the appeal, there having been heretofore no opportunity for trial of the cause in the
circuit court, and no actual delay. 2. EXECUTION-ISSUE AFTER APPEAL-LACHES.
The court will deny a motion for leave to issue an execution made after an appeal taken, and a considerable delay in causing a transcript of the record to be sent up, and based on an assumption that the appeal has been abandoned, when it appears that a hearing of the cause in the appellate court has not bren actually delayed by
laches on the part of the appellant. (Syllabus by the Court.)
HANFORD, J. In this case, a decree in favor of the libelant was rendered by the district court of the third judicial district of the territory of Washington, from which an appeal was taken to the supreme court of the territory, and everything necessary to perfect said appeal was done before the retirement of the territorial courts, consequent upon the organization of the state government, except to certify and transniit the record to the supreme court, and docket the case therein. As I understand the different statutory provisions affecting the subject, this court is the successor of the territorial court of original jurisdiction as to all admiralty causes pending at the time the change from a territorial to a state government took place. And all such cases are to be understood as having been, by operation of law, transferred from such court of original jurisdiction to this court. And this court, in taking cognizance of them, regards them as if everything done by its predecessor had been done by this court, and its duty is to do whatever may be properly done to finish them. In other words, this court takes such cases in the condition in which the territorial district court left them, and proceeds to do whatever remains to be done to afford the parties on either side whatever relief they may be entitled to have, and to end the litigation; therefore the case came properly into this court, and in due course it should have given effect to the appeal taken by certifying and transmitting the record to the circuit court of this district, which is as to such cases the successor of the territorial supreme court, and the only court to which the cause can be taken on appeal. The record should have been sent up, and the cause docketed in the circuit court before the first day of its first term for the northern division of the district, and I consider it the fault of the proctor for the appellant, rather than of the clerk, that this was not done, for it is not claimed that the clerk has ever refused or been unwilling to make the transcript or docket the cause, and as a matter of fact he has only delayed for want of a request to proceed. This neglect, however, has not in fact delayed the hearing or decision of the case, for there has been no judge in attendance except the district judge, who, as judge of the territorial court, gave the decision appealed from, and who is therefore, within the spirit and reason of section 614 of the Revised Statutes, debarred from again deciding the case. Such being the facts and condition of the case, the libelant now moves for leave to issue an execution upon the decree, claiming that by laches the appeal has been abandoned. I hold, however, that no actual intent to abandon the appeal is shown, and that until an opportunity to have a review of the case has been suffered to pass, abandonment of the appeal cannot be legally implied from laches. The first term of the circuit court has not yet ended; and whether the appellant shall be denied a trial in the appellate court as a penalty for failure to have the case docketed before the beginning of the term is a question for that court to decide. No rules of practice have as yet been adopted by either the circuit court or this court, and the interruption of the proceedings in the case, incident to the change of government, has created confusion and uncertainty in the practice. In view of all the facts and circumstances proper to be con
sidered, notwithstanding the hardship to the libelant of having to wait so long for the final decision of his case, I could not but regard a ruling, which would in effect cut off the right of appeal, as tyrannical, and I therefore deny the motion.
NON-MAGNETIC WATCH Co. v. ASSOCIATION HORLOGERE SUISSE OF
GENEVE et al.
(Circuit Court, S. D. New York. October 13, 1890.)
1. WRITS-SERVICE BY PUBLICATION.
In a suit to determine the title to a patent-right, a non-resident defendant cannot be served by publication under the judiciary act of 1875, $ 8, providing for such service in suits “to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property
within the district." 2. SAME.
On a motion for service by publication on a foreign corporation, the court cannot determine the question whether it is engaged in business in the district, and therefore bound by service had on its director.
LACOMBE, Circuit Judge. This is an application for an order directing service of process upon the defendant, a Swiss corporation, by publication. The petition states that the suit is brought to remove a cloud upon “the title to certain letters patent” which it is claimed are the property of the complainant corporation, or rather of its receiver, and which "original letters patent, the subject matter involved in this suit, are in the possession of (such receiver.]” This statement is not technically accurate. What the suit is concerned with is the title to the patent itself, —to the patent-right; and the mere custody of the letters evidencing the fact that such patent-right was originally granted to a particular inventor is immaterial.
The petitioner claims that he is entitled to the relief prayed for, under section 8 of the judiciary act of 1875, which provides for such service upon non-resident defendants when the suit is commenced “to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought.” The variou cases which were cited by the complainant's counsel interpreting this section are concerned either with real property, or with such tangible personal property as was susceptible of reduction to actual possession. I cannot satisfy myself that the section covers (or was intended to cover) such incorporeal and intangible property as a patent-right, possession of which must of necessity be ideal, not actual, and which cannot be seized or sold under an
execution. Stephens v. Cady, 14 How. 528; Stevens v. Gladding, 17 How. 447. Statutes which undertake to give to courts jurisdiction over nonresidents, who do not come within the district for purposes either of residence or business, should not be enlarged by too liberal construction, and in the absence of authority I must decline to make the order prayed for. It seems further from the moving papers that Louis Bornand, who is made a defendant, has been served with process, and has appeared personally. He is a director of the defendant corporation. Complainant asks for an order declaring that the service of process on defendant Bornand shall be deemed good and sufficient service on the defendant corporation. If that motion is based upon the statute already quoted, it should be denied for the reasons above given. If it is contended that the defendant corporation is in fact engaged in business in this district, (as the supplementary motion papers seem to indicate,) and therefore service upon the director is service upon the corporation, that question cannot be settled on such a motion. Unless it is raised by a motion on the part of the defendant corporation to set aside the service, it will be properly disposed of when the court comes to enter final judgment.
EASTON et al. o. HOUSTON & T. C. Ry. Co. et al., (WATERS-PIERCE OIL
(Circuit Court, E. D. Texas. December 1, 1890.)
FINAL DECREE-REHEARING-TIME OF APPLICATION.
At the term succeeding that at which a decree dismissing an intervention on the merits, without prejudice, was rendered, there was a final decree in the main cause. Held that, even if the decree dismissing the intervention was not final at its rendition, it became final on the rendering of the final decree in the main cause, and therefore, under equity rule 88, providing “that no rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the supreme court, but if no appeal lies the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court,” a rehearing on the intervention could not be granted at the third term after the final decree in the main cause was rendered.
John C. Walker, for the Waters-Pierce Oil Company.
PARDEE, J. The Waters-Pierce Oil Company filed an intervention in the above-entitled cause on the 10th day of November, 1886, claiming the sum of $969 as a lien against the trust funds in the hands of the court, arising out of the earnings of the Houston & Texas Central Railway Company for and on account of certain oil supplies furnished the Houston & Texas Central Railway Company during the months of January and February, 1885, and prior to the original appointment of receivers in this case. This intervention, under a general order of the court theretofore made relative to petitions pro interesse suo, was duly re