McLish v. Roff

Decision Date07 December 1891
Citation141 U.S. 661,35 L.Ed. 893,12 S.Ct. 118
PartiesMCLISH v. ROFF et al
CourtU.S. Supreme Court

W. Hallett Phillips and W. O. Davis, for plaintiff in error.

W. A. Ledbetter, for defendants in error.

Mr. Justice LAMAR delivered the opinion of the court.

This was a suit brought in the United States court for the Indian Territory, third judicial division, by A. B. Roff and W. R. Watkins against Richard McLish, for the recovery of about 640 acres of land, situated in the Chickasaw Nation, and belonging to said tribe. In their amended complaint, they alleged that the defendant, Richard McLish, is a member of the tribe of Chickasaw Indians by blood; that both plaintiffs, Roff and Watkins, were born in the United States, and are now, and always have been, citizens of the United States, neither of them ever having renounced his allegiance to the government of the United States, nor taken the oath of allegiance to the government known as the 'Chickasaw Government.' The complaint further alleged that both plaintiffs, Roff and Watkins, are members and citizens of the Chickasaw tribe of Indians by intermarriage, and not by nativity or adoption; that on the 15th day of November, 1865, the plaintiff Watkins, by intermarriage with Elizabeth Tyson, a member of said tribe by blood, became himself a member of said tribe, and that the plaintiff Roff also became a member of the same tribe by intermarriage with Matilda Bourland, the daughter of an adopted member of the tribe, during the year 1867; that, as such citizens of the Chickasaw Nation, the plaintiffs had the right to own and did own, on or about the 1st of September, 1888, as tenants in common, the tract of land described in the complaint, and were in the actual possession thereof, but that on that day the defendant McLish entered upon the said premises and unlawfully ousted the plaintiffs therefrom; and that he unlawfully withholds the same, and has continuously done so up to the time of bringing this suit, to the damage of the plaintiffs $10,000. They pray for the recovery of the said premises, with the rents, damages, and costs; or, if the court holds that they are not entitled to the recovery of the land, that they recover the value of the improvements put thereon, which improvements are set forth in some detail in the complaint, amounting in value, in the aggregate, to $2,875 by Roff, and to $2,200 by Watkins.

At October term, 1890, the defendant filed his demurrer to the jurisdiction of the court, on these grounds: (1) It appears from plaintiffs' amended complaint that the parties plaintiff and defendant are citizens of the Chickasaw Nation or tribe of indians, and that the court is without jurisdiction over the parties to this suit, and of this the defendant prays the judgment of the court whether he ought to answer said complaint. (2) It appears from the amended complaint that plaintiffs acquired their pretended rights as citizens of the Chickasaw Nation, and that they claim such rights, because of their said citizenship; and that this is a controversy between citizens of the Chickasaw tribe of Indians, of which the courts of said tribe have exclusive jurisdiction, and of this the defendant prays a judgment of the court that this suit be dismissed. The demurrer was overruled by the court upon the ground that it had jurisdiction to hear and determine the cause, to which the defendant excepted. The defendant thereupon insisted that the jurisdiction of the court over the suit was at issue, and, desiring to remove the cause by writ of error to the supreme court of the United States for its decision upon the question of jurisdiction involved, requested the court below to certify the question of jurisdiction involved to that court for review, offering to file a petition for a writ of error, with good and approved security, and asked that the court proceed no further with the cause until the jurisdiction should be decided by the supreme court of the United States. The court denied said request, and held that it was its duty to proceed with the trial of the case, notwithstanding the question of jurisdiction, and that the defendant could only appeal upon that question (of jurisdiction) to the supreme court of the United States from the final judgment of the court below, and required the defendant to proceed with the trial of the cause upon the merits; to all of which the defendant excepted, tendering his bill of exceptions, and asking that the same be allowed and certified, which was done by the judge of said court. He then sued out a writ of error from this court.

The writ of error is taken under the act of March 3, 1891, (26 St. 826,) which, as we have decided in Re Claasen, 140 U. S. 200, 11 Sup. Ct. Rep. 735, went immediately into effect on its enactment. The thirteenth section of that act placed the United States court in the Indian Territory on the same footing with regard to writs of error and appeals to this court as that occupied by the circuit and district courts of the United States. Section 5 of the same act provides 'that appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court in the following cases: In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision.' Does this provision authorize an appeal or writ of error to be take to this court for review of a question involving the jurisdiction of the court below, whenever it arises in the progress of a case pending therein; and does the taking of such appeal or writ of error operate to stay the further proceedings in the cause until the determination by this court of the jurisdictional question? Or, in other words, has this court jurisdiction to review the question before any final judgment in the cause?

The plaintiff in error contends that we have the jurisdiction to review such question. because (1) there is in the section above quoted no express requirement of finality of judgment; and (2) because...

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    • January 2, 1992
    ...783 (1940); Heike v. United States, 217 U.S. 423, 428-429, 30 S.Ct. 539, 540-41, 54 L.Ed. 821 (1910); McLish v. Roff, 141 U.S. 661, 665-666, 12 S.Ct. 118, 119-20, 35 L.Ed. 893 (1891); Borden Co. v. Sylk, 410 F.2d 843, 846 (3d Cir.1969); United States v. Fried, 386 F.2d 691, 695 (2d Cir.1967......
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    ...the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.' McLish v. Roff, 141 U.S. 661, 665—666, 12 S.Ct. 118, 120, 35 L.Ed. 893.2 Section 22 of the Judiciary Act of 1789, 1 Stat. 73, 84, provided that appeals in civil actions could be take......
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    ...suit has been a basic principle of our jurisprudence since the Judiciary Act of 1789, 1 Stat. 73, 84. In McLish v. Roff, 141 U.S. 661, 665-66, 12 S.Ct. 118, 119-20, 35 L.Ed. 893 (1891), the Supreme Court identified the following reasons for this From the very foundation of our judicial syst......
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    ... ... See ... Louisiana Nav. Co. v. Oyster Commission, 226 U.S ... 99, 33 Sup.Ct. 78, 57 L.Ed. 138; McLish v. Roff, 141 ... U.S. 661, 12 Sup.Ct. 118, 35 L.Ed. 893. Furthermore, the ... Fidelity Title & Trust Company, trustee under the mortgage ... made ... ...
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2 books & journal articles
  • Gaining Appellate Review by "manufacturing" a Final Judgment Through Voluntary Dismissal of Peripheral Claims - Rebecca A. Cochran
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-3, March 1997
    • Invalid date
    ...appellate court could not simultaneously review the entire trial court record; thus, need for a final judgment rule). 98. McLish v. Roff, 141 U.S. 661, 665-66 (1891); M. Linda Concannon & Berniece A. Browne, What Ever Happened to the Right to Appeal?, 57 PLI/CORP. 511, 515 (1987) ("The requ......
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    • California Lawyers Association California Litigation Review (CLA) No. 2020, 2020
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    ...28, 2021).148. Ibid.149. Microsoft Corp. v. Baker (2017)___ U.S. ___[137 S.Ct. 1702, 1712, 198 L.Ed.2d 132], quoting McLish v. Roff (1891) 141 U.S. 661, 665-666 [12 S.Ct. 118, 35 L.Ed. 893].150. See Concha v. London (9th Cir. 1995) 62 F.3d 1493, 1506-1509.151. Id. at p. 1507.152. (9th Cir. ......

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