Ayers v. Watson

• Decision Date: 02 March 1885
• Citation: 28 L.Ed. 1093,5 S.Ct. 641,113 U.S. 594
• Parties: AYERS and another v. WATSON
• Court: U.S. Supreme Court

113 U.S. 594

5 S.Ct. 641

28 L.Ed. 1093

AYERS and another v. WATSON.

March 2, 1885.

[Syllabus from pages 594-595 intentionally omitted] W. W. Boyce, for plaintiff in error.

L. W. Goodrich, for defendant in error.

BRADLEY, J.

This was an action of trespass to try title of certain land in Bell county, Texas, originally brought in the district court of said county by Watson, the defendant in error, against the plaintiffs in error and one Anderson. The land claimed was described in the petition as a tract lying in said county of Bell, about 15 miles north-east by north from the three forks of Little river, stating the boundaries. The defendants excepted to the petition for insufficiency of law, and also pleaded not guilty. One of them, Frank Ayers, pleaded specially that he was owner in fee-simple of a tract of 11 leagues, granted by the government of Coahuila and Texas to Maximo Moreno, in the year 1833, describing its m tes and bounds; and he alleged that the land described in the plaintiff's petition, and claimed by him under some pretended patent from the state of Texas to the heirs of one W. W. Daws, deceased, was embraced within the boundaries of said 11-league grant, which was an elder and superior title. Anderson pleaded separately that he was occupying the Moreno grant as tenant of Ayers; and especially that 100 acres, including improvements, where he resided, (describing its situation,) was held by him under said Moreno title; that he had been in possession of said land for more than 12 months before the institution of this suit, adversely and in good faith; and he claimed the value of his improvements if the court should hold the plaintiff entitled to recover.

The plaintiff's original petition was filed in August, 1877, and the amended petition and pleas were filed in April, 1879. The cause was first tried in April, 1879, and again in April, 1880, and on both occasions the juries disagreed. Ayers then presented a petition for the removal of the cause to the circuit court of the United States, alleging that he was a citizen of the state of Mississippi, and that the plaintiff was a citizen of Texas, and that there could be a final determination of the controversy, so far as he was concerned. without the presence of the other defendants as parties in the cause. The court granted the petition, and the cause was removed, no objection to the removal being made either then or in the circuit court afterwards. But after the issuing of the present writ of error from this court, the plaintiffs in error, at the instance of one of whom (Frank Ayers) the cause was removed, assigned for error, among other things, that the circuit court erred in taking jurisdiction of the cause. In view of the position of the party who raises the objection, we certainly should not feel disposed to reverse the judgment on the ground of the removal of the cause, unless it was clear that the circuit court had no jurisdiction whatever to hear and determine it. The only reasons assigned before us for the want of jurisdiction are—First, that it did not appear that the matter in dispute exceeded, exclusive of costs, the value of $500; secondly, that the application for removal was too late.

The first reason has no foundation in fact. The plaintiff's petition demanded the recovery of the land and $500 damages. This was certainly a demand for more than $500, unless it can be supposed that the land itself was worth nothing at all, which will hardly be presumed. The second reason is more serious. The application for removal was beyond question too late according to the act of 1875, though not so under the act of 1866 as codified in Rev. St. § 639, cl. 2, which allows the petition for removal to be filed 'at any time before the trial or final hearing of the cause.' This language has been held to apply to the last and final hearing. A mistrial by disagreement of the jury did not take away the right of removal. See Insurance Co. v. Dunn, 19 Wall. 214; Stevenson v. Williams, Id. 572; Vannevar v. Bryant, 21 Wall. 41; Railroad Co. v. McKinley, 99 U. S. 147. But we have held that this clause of section 639 was superseded and repealed by the act of 1875. Hyde v. Ruble, 104 U. S. 407, 410; King v. Cornell, 106 U. S. 395: S. C. 1 SUP. CT. REP. 312; Holland v. Chambers, 110 U. S. 59; S. C. 3 SUP. CT. REP. 427. We are compelled, therefore, to examine the effect of the act of 1875 upon the jurisdiction of the court when the application is made at a later period of time than is allowed by that act.

By section 2 of the act of 1875 any suit of a civil nature, at law or in equity, brought in a state court, where the matter in dispute exceeds the value of $500, and arising under the constitution or laws of the United States, or in which the United States is plaintiff, or in which there is a controversy between citizens of different states, or a controversy between citize § of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects, either party may remove said suit into the circuit court of the United States for the proper district, and when in any such suit there is a controversy wholly between citizens of different states, which can be fully determined as between them, one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit to the circuit court of the United States for the proper north* 22 deg. east 22,960 varas, and planted based on the constitutional grant of judicial power. The succeeding sections relate to the forms of proceeding to effect the desired removal.

By section 3 it is provided that a petition must be filed in the state court before or at the term at which the cause can be first tried, and before the trial thereof, for the removal of the suit into the circuit court, and with such petition a bond, with condition, as prescribed in the act. The second section defines the cases in which a removal may be made; the third prescribes the mode of obtaining it, and the time within which it should be applied for. In the nature of things, the second section is jurisdictional, and the third is but modal and formal. The conditions of the second section are indispensable, and must be shown by the record; the directions of the third, though obligatory, may, to a certain extent, be waived. Diverse state citizenship of the parties, or some other jurisdictional fact prescribed by the second section, is absolutely essential, and cannot be waived, and the want of it will be error at any stage of the cause, even though assigned by the party at whose instance it was committed. Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379; S. C. 4 SUP. CT. REP. 510. Application in due time, and the proffer of a proper bond, as required in the third section, are also essential if insisted on, but, according to the ordinary principles which govern such cases, may be waived, either expressly or by implication. We see no reason, for example, why the other party may not waive the required bond, or any informalities in it, or informalities in the petition, provided it states the jurisdictional facts; and if these are not properly stated, there is no good reason why an amendment should not be allowed, so that they may be properly stated. So, as it seems to us, there is no good reason why the other party may not also waive the objection as to the time within which the application for removal is made. It does not belong to the essence of the thing; it is not, in its nature, a jurisdictional matter, but a mere rule of limitation. In some of the older cases the word 'jurisdiction' is often used somewhat loosely, and no doubt cases may be found in which this matter of time is spoken of as affecting the jurisdiction of the court. We do not so regard it. And since the removal was effected at the instance of the party who now makes the objection, we think that he is estopped. In Railroad Co. v. Koontz, 104 U. S. 17, we held that where the state court disregarded a petition for removal properly made, and the plaintiff continued to prosecute the suit therein, he would be deemed to have waived any objection to the delay of the defendant in entering the cause in the circuit court of the United States until the decision of the state court is reversed. We do not think that this assignment of error is well taken.

The case, on its merits, depends upon the correctness of the instructions given to the jury. By agreement of the parties, the patents or grants under which they respectively claimed, as set forth in the petition and answer, and their deraignment of title under the same, were admitted on the trial, and the controversy was reduced to the simple question of locating the surveys on the ground. The tract claimed by the plaintiff, Watson, was one-third of a league, patented to the heirs o Walter W. Daws, and its position was well ascertained and defined; and the question was whether it was or was not embraced in the older survey of the 11-league grant, owned by the defendant Ayers, which was described in the field-notes of the grant as follows, viz.: 'Situated on the left margin of the river San Andres, below the point where the creek called Lampassas enters said river on its opposite margin, and having the lines, limits, boundaries, and landmarks following, to-wit: Beginning the survey at a pecan (nogal) fronting the mouth of the aforesaid creek, which pecan serves as a landmark for the first corner, and from which 14 varas to the north 59 deg. west there is a hackberry 24 in. dia., and 15 varas to the south 34 deg. west there is an elm 12 in. dia., a line was run to the north deg. east 22,960 varas, and planted a stake in the prairie for the second corner. Thence another line was run to the south 70 deg. east, at 8,000 varas crossed a branch of the creek called Cow creek, at 10,600 varas crossed the principal branch of said creek, and at...