Dorne v. Richmond Silver Min. Co.

• Decision Date: 01 March 1890
• Parties: Dorne v. Richmond Silver Min. Co.
• Court: South Dakota Supreme Court

44 N.W. 1021

1 S.D. 20

Dorne v. Richmond Silver Min. Co.

Supreme Court of South Dakota

March 1, 1890.

Appeal from district court, Lawrence county.

Van Cise & Wilson, for appellant. Martin & Mason and Moody & Washabaugh, for respondent.

CORSON P. J.

This cause comes before the court on a motion, made on the part of the defendant and appellant, for an order transferring the case to the United States circuit court, on the ground that it is one of federal jurisdiction, by reason of the citizenship of the parties. The action was commenced in the district court of Lawrence county in October, 1883, and was tried in that court in April, 1889, when judgment was rendered in favor of the plaintiff and respondent for $15,315.70. In October, 1889, the case was appealed to the supreme court of the territory, and the record was filed in the office of the clerk of that court on the same day. Upon the admission of the state of South Dakota into the Union, on the 2d day of November, 1889, the case, being then pending in said territorial supreme court, came to the supreme court of the state. The citizenship of the parties not appearing in the pleadings or record, this motion is made on the verified petition of the defendant setting forth the citizenship of the parties at the time of the commencement of the action as follows: "That your petitioner was at the time of bringing this suit, and still is, a citizen of the state of New York, and that the said plaintiff was then a citizen of that portion of the territory of Dakota which is now the state of South Dakota, and still is a citizen of South Dakota, and that the controversy in said action was and is wholly between the said plaintiff and said defendant;" and the petition concludes with following request: "Your petitioner therefore requests that this action, and all files, records, and proceedings relating thereto, may be transferred to the circuit court of the United States, to be proceeded with therein in due course of law." The counsel for the plaintiff filed written objections to such transfer, stating as the grounds thereof that the petition does not upon its face show said cause was one transferable to said circuit court, or that the same is of a federal character; and upon the argument counsel made the more specific objection that the petition discloses the fact that the plaintiff was at the time of the commencement of the action a resident and citizen of the territory of Dakota, and was not, therefore, a citizen of a state, within the meaning of the terms used in the constitution of the United States and laws of congress conferring jurisdiction on the federal courts.

In deciding this motion, it will be necessary to give a construction to those sections of the enabling act under which the state of South Dakota was admitted into the Union providing for the transfer of cases pending in the territorial courts at the time the state was admitted to the federal courts, and more especially that part of section 23 which provides that all cases "whereof the circuit or district courts by this act established might have had jurisdiction under the laws of the United States, had such courts existed at the time of the commencement of such cases," shall be transferred to the United States court.

Before proceeding to an examination of the provisions of the enabling act, before referred to, a brief review of the former laws, and the decisions of the courts thereunder pertaining to the transfer of cases to the federal courts pending in other territories at the time of their admission as states, will perhaps aid us in arriving at a correct conclusion as to the proper construction to be given the provisions of our own enabling act. Prior to 1847, there seems to have been great uncertainty in the matter of the transfer of cases pending in the territorial courts on the admission of the territories as states; but, on the admission of the territory of Florida as a state, without any special provisions for the transfer of causes to the federal courts giving rise to protracted litigation, congress proceeded to legislate upon the subject; and, in reference to this legislation, Mr. Justice DAVIS, in Express Co. v Kountze, 8 Wall. 342, says: "On the admission of a new state into the union, it becomes necessary to provide not only for the judgments and decrees of the territorial courts, but also for their unfinished business. In recognition of this necessity, congress, after Florida became a state, passed an act providing, among other things, that all cases of federal character and jurisdiction pending in the courts of the territory be transferred to the district court of the United States for the district of Florida. The provisions of this act were made applicable, at the time of its passage, to cases pending in the courts of the late territory of Michigan, and were afterwards extended to the courts of the late territory of Iowa. Congress, in making this provision for the changed condition of Iowa, thought proper, in the same act, to adopt a permanent system on this subject, and extend the provisions of the original and supplementary acts to cases from all territories which should afterwards be formed into states." The provisions of the acts above referred to have been, substantially, incorporated into the Revised Statutes of the United States, and constitute sections 567, 568, and 704 of the same. While these provisions were in force, the case of Express Co. v. Kountze, above cited, came into the United States circuit court for the state of Nebraska, being transferred to that court from the supreme court of the state of Nebraska, as one pending in the territorial supreme court at the time of Nebraska's admission as a state, and was afterwards taken on writ of error to the supreme court of the United States. It appears from the statement of facts in the case that the plaintiffs in the court below, Kountze Bros., at the time the action was brought in the territorial court of Nebraska, were residents and citizens of that territory, and continued to be citizens until the territory was admitted as a state; and that defendant, at the time the action was commenced, and at the time of the transfer, was a citizen of the state of New York. Objection was taken to the jurisdiction of the supreme court of the United States on the ground that the case was improperly transferred to the federal court. The court overruled the objection, and held that the case was properly transferred. Subsequently, a similar case, also from Nebraska, was argued in the supreme court of the United States. In that case, it appears from the statement that Baker,...