Putnam v. Ickes

• Decision Date: 06 May 1935
• Docket Number: No. 6376-6383.,6376-6383.
• Citation: 64 App. DC 339,78 F.2d 223
• Parties: PUTNAM et al. v. ICKES, Secretary of the Interior, et al., and seven other cases.
• Court: U.S. Court of Appeals — District of Columbia Circuit

64 App. DC 339, 78 F.2d 223 (1935)

PUTNAM et al. v. ICKES, Secretary of the Interior, et al., and seven other cases.^*

Nos. 6376-6383.

United States Court of Appeals for the District of Columbia.

Argued April 8, 1935.

Decided May 6, 1935.

R. M. Hudson and Minor Hudson, both of Washington, D. C., for appellants.

J. Kennard Cheadle, Edward C. Finney, William G. Feely, F. W. Clements, and Challen B. Ellis, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

VAN ORSDEL, Associate Justice.

The above appellants, petitioners in the court below, each filed an application for a homestead entry within the bounds of a tract of land located in the state of California. The lands referred to are known as Santa Ana Ranch or grant, containing approximately 62,516.57 acres, all of which is alleged to be public domain of the United States. This land was acquired as a Spanish grant protected by the cession of California by Mexico to the United States for which a patent was issued December 21, 1883, to one Bernardo Yorba and others. There was included in this patent 78,941.49 acres. It is alleged that the patent is invalid, null, and void, and was issued through fraud, corruption, collusion, and connivance of agents, officers, officials, and attorneys of the United States, and of the then imperial government of Mexico.

It is claimed that, as a result of the alleged fraud and collusion, these are public lands of the United States and subject to entry under the homestead law. The property is alleged now to be worth approximately $50,000,000. The petitions allege in detail the circumstances under which these lands were acquired, and seek declaratory relief under the authority of the Act of Congress of June 14, 1934, 48 Stat. 955, 956 (28 USCA § 400).

Plaintiffs sought to bring the defendants within the jurisdiction of the Supreme Court of the District of Columbia through personal service of summons upon them in the state of California, where all of the defendants, with the exception of the Secretary of the Interior, reside. Personal service was made upon the Secretary within this District. Motions to quash the service of summons and to dismiss the bill in each of the respective cases was made and sustained by the court below, and from the decrees entered thereon the cases come here on appeal.

Section 112, title 28, USCA, section 51 of the Judicial Code, provides, among other things, as follows: "No civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant." This statute confines the jurisdiction of actions in personam to the district in which the defendant is an inhabitant, and there is no exception to the rule. Ladew v. Tennessee Copper Co., 218 U. S. 357, 31 S. Ct. 81, 54 L. Ed. 1069; Seaboard Rice Milling Co. v. Chic., R. I. & Pac. R. Co., 270 U. S. 363, 46 S. Ct. 247, 70 L. Ed. 633. This rule of procedure is not affected as to the defendants who reside in California by reason of the fact that personal service was had upon the Secretary of the Interior, one of the parties defendant in these suits. Camp v. Gress, 250 U. S. 308, 39 S. Ct. 478, 63 L. Ed. 997.

Section 118, title 28, USCA, section 57 of the Judicial Code, provides for the service of process upon nonresident defendants in actions brought in district courts of the United States through service of process by publication. Under this section of the Judicial Code the court is authorized to order personal service of process upon a nonresident defendant at any place within the United States where the defendant may be found. In the event that the defendant cannot be found for personal service, the court may order publication of summons once a week for six consecutive weeks upon such nonresident defendant or defendants. Such personal service of process or service by publication is limited to actions to enforce a legal or equitable lien upon or claim to or to remove an incumbrance or lien or cloud upon title to real or personal property situate "within the district" in which such action is instituted.

It is clear that service in the instant cases could not be legally made under the provisions of the Judicial Code, since the real property constituting the res in this case is all located within the state of California and entirely beyond the jurisdiction of the courts of this district to furnish any relief.

On the other hand, if, as contended by counsel for appellants, these are actions in personam for the mere cancellation of the patents, then personal service can only be made within the jurisdiction in which the case is pending, and substituted service cannot under any circumstances be resorted to. Here the defendants, excepting the Secretary of the Interior, are not residents or inhabitants of the District of Columbia, but are all residents of the state of California; hence the foregoing provisions of the Judicial Code cannot afford relief, even if this be treated as a personal action. Herndon v. Ridgway, 17 How. 424, 15 L. Ed. 100; Munter v. Weil Corset Co., 261 U. S. 276, 43 S. Ct. 347, 67 L. Ed. 652; Kansas City Southern Ry. Co. v. Chicago Great Western R. Co. (D. C.) 58 F.(2d) 810.

But are appellants in any better position under the provisions of the declaratory relief statute? We think not. This act, among other things, provides as follows:

"Be it enacted * * * That the Judicial Code, approved March 3, 1911, is hereby amended by adding after section 274C thereof a new section to be numbered 274D as follows:

"`Sec. 274D. (1) In cases of actual controversy the courts of the United States shall have power upon petition, declaration, complaint, or other appropriate pleadings to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such.

"(2) Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party, whose rights have been adjudicated by the declaration, to show cause why further relief should not be granted forthwith.

"(3) When a declaration of right or the granting of further relief based thereon shall involve the determination of issues of fact triable by a jury, such issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, whether a general verdict be required or not.'" (48 Stat. 955, 28 USCA § 400.)

What is sought here by appellants is a declaratory judgment or decree in effect adjudicating the patents issued for the lands in question and the grant upon which those patents are based to be invalid and void, and a declaration by the court of the respective rights of the appellants and the appellees to the real property in question, no part of which is situated in the District of Columbia, but wholly within the state of California.

It follows, we think, that, in so far as this action seeks an adjudication of the invalidity of the grant or patent to the real property in question, it is merely an action in personam. It cannot under any theory of the case be treated as an action in rem, for the res, if any, here involved is real property situated in California. The grant or the patent cannot be treated as the res, since an action for the cancellation of an instrument conveying real property is an action in personam, especially if the real property is not situated within the boundaries of the jurisdiction of the court. In the absence of jurisdiction over the defendants or the property involved, the court is wholly without jurisdiction to render any relief whatever in the premises. Hart v. Sansom, 110 U. S. 151, 3 S. Ct. 586, 28 L. Ed. 101.

We think it is clear from any reasonable construction of the acts that the Declaratory Judgment Act has not given the courts jurisdiction over any controversy that would not be within their jurisdiction if affirmative relief were being sought. The act merely declares that a court of the United States has power "in cases of actual controversy * * * to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed." (28 USCA § 400.) It clearly follows, we think, that in any actual controversy wherein the court otherwise has jurisdiction of the subject-matter and the parties the court has power to determine the rights of the petitioner, although the case may not have developed to a point wherein affirmative relief could be given. That is as far as the act goes. The right of the court to assume jurisdiction is to be determined by the principles laid down in the Judicial Code. The Declaratory Act is in no respect amendatory of the Judicial Code either directly or by implication. If Congress had intended by this act to extend the jurisdiction of the courts in cases arising under it, it would have so stated in the act, and, in the absence of such statement or language clearly implying such intent, the act must be limited to the jurisdiction expressed therein.

We now come to the question of the jurisdiction of the court to compel the Secretary of the Interior, on whom personal service was acquired within the District of Columbia, to cancel the patents issued for the land in question, and to declare it public land of the United States, subject to homestead entry, and to approve the applications for homestead entries made in these cases. We think that as to the suit against the Secretary of the Interior appellants are in no better position than they are with respect to the...