United States v. Alamogordo Lumber Co.

• Decision Date: 21 December 1912
• Docket Number: 3,802,3,831.
• Citation: 202 F. 700
• Parties: UNITED STATES v. ALAMOGORDO LUMBER CO.
• Court: U.S. Court of Appeals — Eighth Circuit

202 F. 700

UNITED STATES v. ALAMOGORDO LUMBER CO.

Nos. 3,802, 3,831.

United States Court of Appeals, Eighth Circuit.

December 21, 1912

Syllabus by the Court.

A writ of error is not brought, it does not remove the record from the lower court until it is filed or lodged in the court, or with the clerk of the court, which rendered the judgment, or which has succeeded to the jurisdiction of that court over the judgment to be reviewed and the files and records pertaining to it, and until the writ is so brought it presents no ruling for an appellate court to review.

Under section 15 of the Enabling Act of New Mexico (Act June 20 1910, c. 310, 36 Stat. 566), the jurisdiction of any case pending in any court of the territory of New Mexico other than the Supreme Court thereof at the time of its admission as a state, which was such that, if begun in a state, it would have fallen within the concurrent and not within the exclusive jurisdiction of a Circuit Court or a District Court of the United States, was transferred by operation of law to the proper state court.

In the absence of an application by any party to such a case made as nearly as might be in the manner provided for the removal of cases from state courts to federal courts not later than 60 days after the lodgment of the record of such case in the proper state court for its removal to the United States District Court in the state, the jurisdiction of that court over such case, its files and records, did not attach.

An order of the District Court of the United States in the state for such a removal, in the absence of any application by any party to the case therefor in the manner above specified, is against timely objection, ineffectual to sustain the jurisdiction of that court over the case, its files, or records.

A decree was rendered in one of the district courts of the territory of New Mexico on December 22, 1911, a writ of error was issued to review it on January 5, 1912, the state of New Mexico was admitted to the Union on January 6, 1912, and the court which rendered the judgment then ceased to exist. The case was such that, if begun in a state, it would have fallen within the concurrent, and not within the exclusive jurisdiction of a Circuit or District Court of the United States, and the jurisdiction of the court which rendered the decree over it was transferred to the proper state court by the enabling act. The writ of error was not filed or lodged with the latter court or its clerk, nor was it filed or lodged with the court which rendered the decree before it ceased to exist, no application to remove the case to the United States District Court in the state as prescribed by the enabling act was ever made, but the files and records in the case were taken to that court pursuant to its order.

Held in so far as the order of the District Court of the United States in the state directed the transfer, or was intended to transfer, jurisdiction of the case, or of its files or records, to that court, it was ineffectual in the face of timely objection, and the jurisdiction of that court never attached to it or them. The writ of error was never brought because it was never filed or lodged with the district court of the territory while it existed, nor with the proper court of the state to which the jurisdiction of the former over the case, its files and records, was transferred.

In the state of facts relative to the transfer of the case to the United States District Court in the state of New Mexico stated above an appeal was prayed of, and allowed by, that court on June 20, 1912, from the decree of the district court of the Sixth judicial district of the territory of New Mexico rendered on December 22, 1911.

Held, the allowance of the appeal by the United States District Court in the state was ultra vires, the application of the United States to it for the appeal was idle because its jurisdiction had not attached to the case, and the appeal must be dismissed.

Construction and interpretation have no place or office where the language of a statute is unambiguous and its meaning evident. In such a case arguments from the history of legislation, from the possible or even probable effect of the statute and from the inconvenience of complying with its terms, serve only to create doubt and to confuse the judgment.

Where the legislative body has included in a statute by general language many subjects, persons, corporations, or cases, and made no exception, the legal presumption is that it intended to make none, and it is not the province of the courts to do so.

Stephen B. Davis, Jr., U.S. Atty., of Las Vegas, N.M. (Herbert W. Clark, Asst. U.S. Atty., of East Las Vegas, N.M., on the brief), for the United States.

Horace N. Hawkins, of Denver, Colo., and John Franklin, of El Paso, Tex. (W. A. Hawkins, of El Paso, Tex., on the brief), for defendant in error and appellee.

Before SANBORN and CARLAND, Circuit Judges, and WILLIAM H. MUNGER, District Judge.

SANBORN Circuit Judge.

On December 22, 1911, the district court of the Sixth judicial district of the territory of New Mexico rendered a decree of dismissal of this case which had been brought against the Alamogordo Lumber Company, a corporation, to avoid certain sales and deeds of lands which had been made by the territory of New Mexico, an alleged trustee for the United States for certain purposes, and under which the Alamogordo Lumber Company claimed title to the lands. The United States seeks a reversal of this decree by a writ of error and by an appeal, and it is met in this court by motions to dismiss both.

The validity of the writ of error is conditioned by these facts: The decree of dismissal was rendered on December 22, 1911, and under the laws of the territory of New Mexico it was reviewable by a writ of error or by an appeal taken within one year from the date of its entry. Session Laws of New Mexico 1907, c. 57, Sec. 1. On January 5, 1912, the clerk of the Supreme Court of the territory issued a writ of error to review this judgment, telegraphed to the clerk of the district court which rendered the judgment that the writ had been issued, and mailed it to him. On the next day, January 6, 1912, the territory, its Supreme Court and the district court which rendered the judgment, ceased to exist, and the state of New Mexico came into being. On that day the clerk of the court which rendered the judgment received the telegram, and on January 8, 1912, he first received the writ. As the court which rendered the judgment had then ceased to exist, he did not file it, but it subsequently came to the hands of the clerk of the United States District Court in the state of New Mexico pursuant to an order of the latter court made March 30, 1912, to the effect that all files, records, and proceedings relating to any cases or controversies pending on the United States side of the district courts of the territory of New Mexico at the date of the admission of the state should be forthwith delivered by the clerk of the court having custody of them to the United States marshal, to be by him transmitted to the clerk of the United States district court in the state, and the case to which they pertained to be docketed by him as a cause in that court, and that the order which was dated March 30, 1912, should take effect on March 1, 1912.

Section 15 of the act of June 20, 1910, enabling the people of New Mexico to form a constitution and a state government, provided that the United States Circuit Court, or the United States District Court, for the state of New Mexico--

'as the case may be, shall have jurisdiction to hear and determine all trials, proceedings and questions arising, or which may be raised, in any case or controversy pending in any of the courts other than the Supreme Court of the said territory at the date of its admission as a state, the case being such that, under the laws of the United States touching the jurisdictions of federal courts, it might properly have been begun in or (as a separable controversy or otherwise) removed to said circuit or said district court, had they been established when the litigation of such case or controversy was commenced. Should such case or controversy be such that if begun within a state, it would have fallen within the exclusive original cognizance of a Circuit or District Court of the United States sitting therein, it shall be transferred to the one or the other of said courts sitting within said state of New Mexico, with due regard for the general provisions of law defining their respective jurisdictions; but should such case or controversy be by nature one of those which under such general jurisdictional provisions fall within the concurrent but not the exclusive jurisdiction of such courts, then such transfer may be had upon application of any party to such case or controversy, to be made as nearly as may be in the manner now provided for removal of cases from state to federal courts, and not later than sixty days after the lodgment of the record of such case or controversy in the proper court of the state, as herein provided. All cases and controversies pending at the admission of the state, and not transferable to the said circuit or district court under the foregoing provision, shall be heard and determined by the proper court of the state. All files, records, and proceedings relating to any such pending cases or controversies shall be transferred to such circuit, district, and state courts, respectively, in such wise and so authenticated or proven as such courts shall respectively, by rule direct, and upon transfer of any case or controversy, as herein provided, the same shall be proceeded with in due course of law; and no writ, action, indictment,...