Hampton v. Williams

• Decision Date: 22 May 1929
• Docket Number: No. 352.,352.
• Citation: 33 F.2d 46
• Parties: HAMPTON et al. v. WILLIAMS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

33 F.2d 46 (1929)

HAMPTON et al. v. WILLIAMS et al.

No. 352.

Circuit Court of Appeals, Eighth Circuit.

May 22, 1929.

Joseph W. Howell, of Tulsa, Okl., for petitioners.

William M. Matthews, of Kansas City, Mo., for respondents.

Before STONE, KENYON, and VAN VALKENBURGH, Circuit Judges.

STONE, Circuit Judge.

This is an original proceeding in this court seeking orders of prohibition against the judge of the Eastern District of Oklahoma and against a special master, appointed by him, prohibiting them from exercising further jurisdiction in the case of Georgia Valliere Hampton et al. v. Sidney T. Ewert et al., and also an order of mandamus against the clerk of that court to require him to transfer the record and papers in said case to the clerk of the District Court for the Northern District of Oklahoma.

The petition alleges that the above case is a civil action concerning mining leases on land; that such land was within the Eastern district when the action was commenced (September 17, 1923) and within the Northern District as subsequently created (Act of February 16, 1925, 43 Stat. 945); that there was a final hearing thereon before Judge Williams, a judge of the Eastern District, which hearing was and the case submitted during March 1925, resulting in a memorandum opinion rendered November 20, 1925, upon which a final decree, favoring defendants, was entered December 1, 1925; that appeal was taken to this court resulting in reversal and remand for proceedings in accordance with the opinion of this court (Hampton v. Ewert, 22 F.(2d) 81); that petitions for rehearing were subsequently filed in this court and denied; that petitions for certiorari were filed in the Supreme Court and denied (276 U. S. 623, 48 S. Ct. 303, 72 L. Ed. 737); that thereafter, the mandate from this court was spread upon the records of the District Court for the Eastern District on April 4, 1928; that, on June 22, 1928, these petitioners (plaintiffs in the above case) filed with the clerk of the Eastern District (one of these respondents) a notice that they desired and requested the transfer of such case to the Northern District, at the same time depositing with said clerk their check to cover costs of such transfer; that, thereafter (June 25, 1928), said clerk informed petitioners that an order of transfer would be necessary and, assuming petitioners would file a motion for such purpose, he (the clerk) had placed such motion on the next motion docket for July 6, 1928; that petitioners (on July 6, 1928) informed the clerk that they had not filed such motion as they deemed the notice sufficient to operate as a transfer of the case; that, with full knowledge that petitioners deemed the notice sufficient and had not and did not intend to file any motion for an order of transfer, the clerk wrote petitioners (on Saturday, July 7, 1928) that he thought such order necessary and (on Monday, July 9, 1928) presented the motion docket to Judge Williams who proceeded as if such motion had been filed and denied same for want of prosecution; that, thereafter (July 9, 1928), Judge Williams appointed Malcolm E. Rosser (respondent herein) as special master to take an accounting in said case and to report his findings and conclusions by October 20, 1928; that the filing of the above notice was sufficient (section 6, Act Feb. 16, 1925, 43 Stat. 945, 946) without more to operate as a transfer of the case to the Northern District, requiring only transmission of the record and papers by the clerk of the Eastern District to the clerk of the Northern District and ending, upon the filing thereof, all jurisdiction of the court of the Eastern District to proceed further therein. It is to prevent such further proceeding by that court and by the special master that the writ of prohibition is sought and it is to compel such transmission of record and papers by the clerk that the writ of mandamus is asked.

Separate response has been filed by each of the respondents — that of respondent Rosser being an adoption of the response of Judge Williams. It is unnecessary to set forth or even summarize the responses. Such matters therein as are material to the determination of this action will be stated hereinafter in connection with discussion of the issues raised here.

While the issues are argued under several headings, they may be regarded as presenting two matters: First, the propriety of the remedy of prohibition; and, second, whether the right of transfer given by the statute (section 6, Act Feb. 16, 1925, 43 Stat. 945, 946) can be and has been waived by the petitioners.

I. Whether prohibition is a proper remedy depends upon whether a question of jurisdiction is involved. This involves the construction of section 6 of the Act of Feb. 16, 1925 (43 Stat. 945, 946). Before this act, Oklahoma had been divided into the Eastern and Western Districts. This act created the Northern District to consist of certain named counties in the Eastern and in the Western Districts. Section 6 thereof provides for the transfer, from the Eastern and Western Districts to the Northern District, of civil cases pending at the time of the organization of the Northern District. It is as follows (section 6, 43 Stat. 946):

"Sec. 6. Any party to any civil action, suit, or proceeding, including proceedings in bankruptcy, which is pending in the said eastern or western district and the prescribed venue of which would have been in said northern district had such district been constituted at the time such action, suit, or proceeding was instituted, may, by filing notice of such desire in the office of the clerk of such eastern or western district as the case may be, cause such action, suit, or proceeding to be transferred to said northern district, and upon the filing of such notice the cause shall proceed in the said northern district as though originally brought therein. The clerk in whose office such notice may be filed shall forthwith transmit all the papers and documents in his court pertaining to such cause to the clerk of said northern district and he shall also, with all reasonable dispatch, prepare and transmit to such last-named clerk a certified transcript of the record of all orders, interlocutory decrees or other entries in such cause, with his certificate under the seal of the court that the papers sent are all that were on file in said court belonging to the cause. For the performance of his duties under this section the clerk so transmitting and certifying such papers and records shall receive the same fees as are now allowed by law for similar services to be taxed in the bill of costs and regularly collected with the other costs in the cause; and such transcript, when so certified and received, shall henceforth constitute a part of the record in the cause in the court to which the transfer shall be made. With such transcript shall be remitted all deposits in the hands of the clerk to the credit or account of such cause. The clerk receiving such transcript and original papers shall file the same. In case the permissible prescribed venue of any such action, suit, or proceeding would, at the option of the plaintiff, have been in either the said eastern district or in the said western district, though said northern district had then been constituted, then such suit, action, or proceeding shall not be removed to said northern district except upon consent of all of the parties thereto which consent shall be filed with the clerk in lieu of the notice of transfer above specified and...