United States v. Crawford

• Citation: 47 F. 561
• Parties: UNITED STATES ex rel. McIntosh et al. v. CRAWFORD et al.
• Decision Date: 05 October 1891
• Court: U.S. District Court — Western District of Arkansas

47 F. 561

UNITED STATES ex rel. McIntosh et al. v. CRAWFORD et al.

United States Circuit Court, W.D. Arkansas.

October 5, 1891

Syllabus by the Court

When section 2103 of the Revised Statutes of the United States provides that such a suit as is provided for by said section may be brought in 'any court of the United States,' it means in any court of the United States within the territorial jurisdiction of which a defendant may be an inhabitant.

By the general law of the United States providing for jurisdiction over the person, to give such jurisdiction two things must concur,-- the suit must be brought at the proper place, and the service of summons must be made at a place where the officer serving it has authority to execute a writ of summons.

By the general provisions of the law of the United States, the circuit or district courts can issue no process of summons to be served beyond the limits of their district.

Independent of positive legislation, the process can only be served upon persons within the district where the same was issued. The court has no authority to issue process of summons to another district, without express authority of the law authorizing it to be done.

The jurisdiction of a circuit or district court of the United States over the person is acquired only by legal service of process, or by the voluntary appearance of such person.

Congress may provide for service of process out of the district where issued, as this is a regulation of practice, subject to legislative control.

Jurisdiction means the power to hear and determine the subject-matter in controversy between the parties to the suit. Jurisdiction to try the cause embraces jurisdiction of the person, of the place, and of the subject-matter. The non-existence of either destroys the right to try.

'Subject-matter' means the foundation of the suit; that there has been a violation of some right by the commission of some act against the law, which therefore becomes a wrong.

Since the passage of the judiciary act of 1875, it is the duty of the court, if it shall appear to its satisfaction at any time after suit is brought, and during the time it is pending that it has no jurisdiction to try the same, to proceed no further with it, but to at once dismiss it, for the court can exert no power in the way of asserting jurisdiction over the subject-matter when there is no subject-matter, and there is therefore a consequent failure of jurisdiction. The court may, under the above circumstances, dismiss sua sponte.

By the act of March 1, 1889, congress intended to change the rule as prescribed by section 2103 of the Revised Statutes of the United States, and by said act it provided when a contract with an Indian or an Indian tribe or nation, for the payment of money to an agent or an attorney, was a valid contract and when money might be legally paid by an officer of the government to an agent or attorney of an individual Indian or an Indian tribe or nation, without violating the law. But the act of March 1, 1889, was only intended to apply to the particular case embraced in the act. Congress, in said act used apt and appropriate language to change the law as prescribed by section 2103 of the Revised Statutes, as far as the case embraced in the act was concerned.

A repeal of a statute by implication is not favored by the law nevertheless, it is well settled that when the two acts are not in all respects repugnant, if the later act covers the whole subject of the earlier, and embraces new provisions which plainly show that the last was intended as a substitute for the first, it will operate as a repeal of the same.

G. P. M. Turner, Zack. Taylor, and Tabor, Hendricks & Horton, for plaintiffs.

Shellabarger & Wilson, Rogers & Read, and Thos. Marcum, for defendants.

PARKER J.

The complaint filed in the case is in substance as follows: That heretofore, to-wit, on or about the 1st of March, 1889, the respondents Pleasant Porter, David M. Hodge, and Espar Hecher were the duly appointed, confirmed, and authenticated delegates of, and representing as such, the Creek Nation of Indians, in certain negotiations then and there pending for the sale and cession to the United States, by said Creek Nation of Indians, of certain tribal Lands, known and designated as 'Oklahoma;' that said delegates then and there consummated said sale and cession for the sum of $2,280,887.10; that the functions of said delegates were, upon the consummation of said sale, and their report of their acts and doings to the proper authorities of said Creek Nation, at an end; that the said delegates afterwards, on the 15th of March, 1889, without any proper authority from the Creek Nation, obtained from the treasurer of the United States, for and on account of the said Creek Nation, the sum of $270,283.71, the same being then and there a part of the consideration for the said sale and cession of the tribal lands known as 'Oklahoma;' that the said money, so paid to the said delegates, was for the account of said Creek Nation, and the said delegates received the same in trust, to be carried and paid by them to the national treasurer of the said Creek Nation, or to such other person as should be authorized to receive the same; that the said delegates wholly failed then and there to pay said sum of money, or any part thereof, into the treasury of the said Creek Nation, or to any person duly authorized to receive the same, or any part thereof, but, wickedly contriving and intending to defraud and cheat the said Creek Nation out of their said money, the said Porter, Hodge, and Espar Hecher conspired, confederated, and combined with their co-respondents, Samuel J. Crawford, Clarence V. Turner, and others, for the purpose, and with the wicked and unlawful intent, to cheat and defraud the Creek Nation out of said sum of money, and to unlawfully appropriate the same to their own use and purposes; and the said defendants, in pursuance of said conspiracy, confederation, and combination, under the pretense of paying said money in discharge of their pretended liability of the said Creek Nation to the said Samuel J. Crawford, for legal services assumed to have been rendered by the said Crawford under a pretended contract for legal services alleged to have been made with the said Crawford in the interest and behalf of the said Creek Nation, touching the negotiation and cession of the said tribal lands known as 'Oklahoma' to the United States, did then and there pay, or pretend to pay, into the hands of the said Crawford the said sum of $270,283.71, which was, to the extent and entire amount thereof, in excess of any valid, properly authenticated, and approved contract for services then and there held by the said Samuel J. Crawford for such legal services; that the payment of the said sum of money for the Samuel J. Crawford was fraudulent and unwarranted, and was but one of the methods of the said conspiracy, confederation, and combination between the said respondents to distribute the said sum of money among themselves and their aiders and abettors, and to fraudulently appropriate the same to their own uses and purposes, all of which they did then and there do. The relators then pray judgment for the above amount. The defendant Crawford, after having had leave of court to appear specially, so appears, and files a motion to quash the writ of summons heretofore issued from the court in this case against him, and for cause of said motion sets out that it appears upon the face of said complaint filed in the case, and it is true in fact, that the said Samuel J. Crawford was not at the time of instituting the said suit, is not now, and never was, an inhabitant or a resident of the said district where the said suit is brought and now pending; and the institution of the said suit against him in said district, and the issuance of summons in said case against him, addressed to the marshal of the District of Columbia, and the attempted service of the said marshal upon him in said District of Columbia, are each and all acts not authorized, but, on the contrary, prohibited, by the statute. The other defendants, after appearing specially, file their motion to move the court to set aside the process against them, and each of them, and to dismiss the said complaint as against them, because, as appears by the face of the complaint, they are Indians, residing in the Indian Territory, and not residents of the said western district of Arkansas, except as to Clarence W. Turner; secondly, because it does not appear that said suit is brought by any person having lawful authority so to do; third, because it appears that the said Clarence W. Turner is a resident of the Indian Territory, and it does not appear that he is a resident or a citizen of any state.

The effect of the motion of Mr. Crawford, which he files after appearing specially for such purpose, is to ask the court to dismiss the case as to him, because he is not before the court; that he has never, by writ of summons, been lawfully served or brought into court. The complaint alleges that Samuel J. Crawford is a resident of the state of Kansas. The return on the summons of the marshal of the District of Columbia shows that the summons was served on Mr. Crawford in the District of Columbia. This is the only service that has been has upon him. It is claimed by counsel for defendant Crawford that this suit can only be brought against him in the district whereof he is an inhabitant, as the suit is manifestly one where the subject-matter of the jurisdiction arises under a law of the United States; and, as he is not an inhabitant of this district, the suit has not been brought in the proper district. Again, they claim process in a civil suit cannot run out of...