Miller v. Tobin

• Decision Date: 10 December 1883
• Citation: 18 F. 609
• Parties: MILLER v. TOBIN.
• Court: U.S. District Court — District of Oregon

18 F. 609

MILLER v. TOBIN.

United States Circuit Court, D. Oregon.

December 10, 1883

N. B Knight, for plaintiff.

James F. Watson, for defendant.

DEADY J.

This is a motion to remand this cause to the state court. A brief statement of the pleadings and proceedings therein is necessary to a correct understanding of the points made by and on the argument of it.

On April 6, 1883, the plaintiff commenced suit in equity in the circuit court of the state for the county of Klamath, to compel the defendant to convey the legal title and deliver the possession to him of a certain tract of land containing 160.66 acres, and situate in said county,-- the same being parts of sections 17, 18, and 19 of township 39 S., and of range 9 E. of the Wallamet meridian,-- upon substantially the following allegations of fact: That said land is swamp and overflowed, and on January 15, 1872, the agents of the state in pursuance of the act of October 26, 1870, to provide for the selection and sale of the swamp and overflowed lands granted to the state by the act of March 12, 1860, selected it as such, and gave notice thereof to the United States surveyor general and local land-office, and in September of the same year sold the premises to the plaintiff, who then paid them 20 per centum of the purchase price thereof, and on July 5th said agents upon proof that the plaintiff had reclaimed said land, and the payment of the balance of the purchase money, made a conveyance of the same to him; that by the last survey of said township, made in 1872 and approved in April, 1873, said land was returned as 'public land,' and on May 3, 1873, the defendant duly claimed the same, in the proper land-office, as a pre-emption, and on April 24, 1875, made proof in said office of his compliance with the laws of the United States as a settler thereon under the pre-emption act, and on October 6, 1875, a patent was issued to him therefor; and that the defendant well knew the land in question was swamp and overflowed, and that his proof of compliance with the pre-emption act was false and fraudulent.

On April 24, 1883, the defendant demurred to the complaint because it did not state facts sufficient to constitute a cause of action, with three special assignments to the effect that the suit was barred by the lapse of time, and a fourth to the effect that the sale to the plaintiff was valid, under the proviso to section 1 of the act of March 12, 1860, by which the United States reserved the right to dispose of any land within the purview of said act, to a settler under the preemption act, at any time before the title thereto is confirmed to the state; and on May 22d the same was overruled, with leave to the defendant to answer to the merits.

On May 23d the defendant answered the complaint, denying the material allegations therein, except that of the sale by the plaintiff, and alleging that the plaintiff's proof of reclamation was false and fraudulent, and that he never did anything to drain the land or make it any more fit for cultivation than it was on March 10, 1860, and that the land is 'wetter' now than it was then; that the defendant has had 10 acres of land under the plow, on which he raised 'wheat, rye, barley, oats, potatoes, and cabbage,' besides five acres in timothy, and that none of the remainder of said land has ever been cultivated, either in 'grass, cereals, or vegetables;' and that he has put improvements thereon of the value of $1,070, consisting of one mile of fence, a cabin, corral, bar, and bridge.

On May 23d so much of the defendant's answer as alleged the failure of the plaintiff to reclaim this land, and the false and fraudulent character of his proof thereabout, was stricken out on motion of the plaintiff. On the same day a replication was filed in the case, in which the defendant is styled Collahan, ' commencing: 'The defendant, for replication to the defendant's answer,' etc. Opposite, in the margin, the clerk or copyist has volunteered this statement: 'Error in the name of the defendant. ' However, the matter is not material now, as the replication only denies tat the defendant acted in good faith, and that his improvements were worth more than $420.

On May 24th the state court made an order, 'by consent of all parties,' referring the case to its clerk, as a referee, to take the testimony therein.

On July 31st, and in vacation, the defendant filed a petition and bond in due form and effect for the removal of the cause to this court, upon the ground that it arose under a law of the United States, namely, the act of March 12, 1860, aforesaid. On August 3d the referee caused notice to be served on the parties that he would proceed to take the testimony in the case on the 8th inst.

On August 23d the defendant filed a motion to remove the cause to this court, based upon the petition and bond aforesaid, and on August 27th, the first day of that term, the plaintiff filed a motion for judgment on the pleadings, which the court took no action upon, but made an order removing the cause, and directed the clerk to make out a transcript of all the pleadings, motions, and orders' of the court and deliver the same to the defendant. On the same day the referee reported that he had taken the testimony in the case on the eighth and twenty-third of August, 'both parties having rested' on the latter day, and submitted the same to the court.

In his certificate to the transcript, dated September 12th, the clerk states that it is a copy of all 'the original pleadings, motions, and orders' in said cause, together with the original petition and bond for removal, 'excepting the testimony in said cause, which now remains full and complete in my office, for the reason that the defendant refuses to pay for a transcript of said testimony.'

The motion to remand was filed on October 25th, and is based on the following grounds: (1) The defendant has not filed in this court a copy of the record as required by law; (2) That this court has no jurisdiction of the parties or subject-matter, because all the material allegations of the complaint are admitted by the answer, and therefore there is no issue in the case involving the construction of an act of congress, as alleged in the petition for removal.

On November 1st the defendant filed a motion for leave to file a transcript of said testimony. This motion was argued and submitted with the motion to remand on November 10th.

The first ground of the motion to remand involves the interpretation of the word 'record' as used in the judiciary act of 1875. By section 3 (18 St. 471) of this act, the party applying for the removal of a cause must give a bond conditioned that he will enter in the circuit court, on the first day of its next session, 'a copy of the record in such suit;' and in section 7 further time is given in a certain contingency for filing 'said copy of record in said circuit court. ' At common law the term does not include depositions or other evidence used in the trial of a case, unless they are made a part of the record by a bill of exceptions. At one time the memorial of the pleadings and proceedings of the court of chancery, when exercising equity jurisdiction, was not thought to have the dignity and effect of a record, nor was the court considered a court of record, as its power to fine and imprison was denied. 2 Bac.Abr. 392, note; 4 Inst. 84. But in the progress of time, and the growth of the equity jurisdiction of the court, the equality of the same in this particular with the common-law courts has been tacitly conceded or declared by statute. Story, Eq. Jur. Sec. 547.

The statutes concerning writs of error and appeals use the term in apparently the same sense, and so as not to include the testimony merely on file in the case. By section 997 of the Revised Statutes it is simply provided that there shall be returned with a writ of error an 'authenticated transcript of the record,' while by section 698 it is provided, in appeals in cases in equity, that there shall be transmitted to the appellate court a 'transcript of the record,' and also 'copies of the proofs.'

In the case of a removal under section 12 of the act of 1789, (1 St. 79,) the application had to be made at the time of the defendant's appearance, and copies of the 'process' against him were required to be filed in the circuit court, which included the declaration or other paper by which the suit was commenced in the state court. Martin v. Kanouse, 1 Blatchf. 149. But in a removal under the act of 1865, and the amendment thereto of 1867, (14 St. 306, 558; section 639, Rev. St.,) the application may be made at any time before the trial or final hearing of the cause, and the party causing the removal is required to file in the circuit court 'copies of the process against him, and of all pleadings, depositions, testimony, and other proceedings in the cause concerning or affecting the petitioner.'

Considering the nature of the provisions on this subject in the acts prior to that of 1875, and the apparent purpose and intent of all of them to provide for the removal of a cause as it may stand in the state court when the petition for such removal is filed, my opinion is that the term 'record,' as here used, ought to be held to include the process pleadings, depositions, etc., as set forth in detail in the act of 1866, on file in the cause at the time of removal. What has been duly or regularly done in the cause up to that time is a part of it, and ought not to be separated from it on a removal for trial in the circuit court. Technically speaking, a deposition may not be a part of the record,' even in a suit in equity; but it is a part of the cause upon which its correct determination may depend, and for this purpose ought to be...