Wood v. Cooper
| Decision Date | 15 March 1927 |
| Docket Number | No. 7544-7547.,7544-7547. |
| Citation | 18 F.2d 535 |
| Parties | WOOD et al. v. COOPER, U. S. Marshal, et al., and three other cases. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David A. Kline, of Muskogee, Okl., and Thomas H. Owen, of Oklahoma City, Okl., for appellants and plaintiffs in error.
John S. Pratt, Sp. Asst. Atty. Gen. (Frank Lee, U. S. Atty., of Muskogee, Okl., on the brief), for appellees and the United States.
Before LEWIS and BOOTH, Circuit Judges, and PHILLIPS, District Judge.
Four matters are here for consideration: Two writs of error, Nos. 7546 and 7547; and two appeals, Nos. 7544 and 7545. One writ of error, No. 7546, and one appeal, No. 7544, relate to the attempted removal (under section 1014, Revised Statutes Comp. St. § 1674) of B. Frank Wood and others, including J. L. Nourse, from the Eastern district of Oklahoma to the Southern district of California, where they had been indicted for using the mail in furtherance of a scheme to defraud. The other writ of error and the other appeal relate to a similar attempted removal of B. Frank Wood and others, not including Nourse, from the Eastern district of Oklahoma to the Southern district of California, where they had been indicted for a similar offense and for conspiracy. The indictments were returned in the Southern district of California June 19, 1925. Wood and Nourse only resisted removal.
By a perusal of more than 1,100 printed pages of record, a great part of which might properly have been omitted, we gather that, after much sinuosity of procedure, judgment was entered in the Eastern district of Oklahoma on the 3d of June, 1926, covering both cases — overruling motions by defendants to quash the complaints in the removal proceedings, overruling motions to dismiss the causes, and granting the application of the United States for the removal of the defendants. Orders of removal were entered the same day. The judgment also stayed the execution of the removal orders until June 18, 1926, and allowed writs of error to obtain review in this court. No supersedeas bond was allowed, but the stay was granted in order that the defendants might apply to this court for allowance of a supersedeas bond. Such application was made to this court, and denied. Writs of error were, however, sued out June 18, 1926, and are here as Nos. 7546 and 7547. On June 18, 1926, the defendants, having failed to secure a supersedeas, surrendered themselves to the United States marshal, and the court thereupon entered a new order for their removal. On the same day, petitions for writs of habeas corpus in the two cases were filed, writs were ordered to issue and were issued, a hearing was had, and orders were entered, also on the same day, discharging the writs which had been so issued. The defendants were again remanded to the custody of the marshal, appeals were allowed from the orders discharging the writs, and a stay of execution of the orders was granted until September 15, 1926, for the purpose of obtaining the allowance of a supersedeas bond by this court. The allowance was obtained, and the two appeals are here as Nos. 7544 and 7545.
In general, the questions involved in the writs of error and in the appeals are the same: (1) Did the United States commissioner or the United States District Court for the Eastern District of Oklahoma have jurisdiction over the parties? (2) Did they have jurisdiction over the subject-matter? (3) Was probable cause shown for the removal?
A preliminary question, however, arises: Has this court jurisdiction by virtue of the writs of error? In Murray v. United States, 273 F. 522, the Circuit Court of Appeals of the Second Circuit held an order of removal not appealable, because it was not a final order. The court said that relief, if obtainable at all, must be obtained by habeas corpus. In Fries v. United States, 284 F. 825, the Circuit Court of Appeals of the Ninth Circuit held that a writ of error would not lie to review an order of removal, the order not being final. In Sawyer v. United States, 297 F. 222, the Circuit Court of Appeals of the Fifth Circuit made the same holding. We agree with the conclusions thus reached, and think the writs of error should be dismissed.
Turning to the appeals. The following steps were had in each of the cases leading up to the habeas corpus proceedings: On November 3, 1925, complaints were filed by the United States with the United States commissioner at Muskogee. Warrants of arrest were issued. December 2, 1925, a hearing was had before the commissioner. The commissioner allowed an amendment to the complaint. The defendants put in an answer, attacking the complaint and the indictment; also attacking the jurisdiction of the commissioner. Both of the defendants testified on the hearing before the commissioner. After the hearing, the commissioner made findings on January 20, 1926, including one of probable cause. March 4, 1926, application was made by the government to the District Court to remand these proceedings to the commissioner, and this application was granted. New or amended complaints were thereupon filed with the commissioner on March 4, 1926; and apparently the same complaints were also filed in the District Court. Further testimony was taken before the commissioner, who thereafter reaffirmed his former findings. On March 23, 1926, a hearing was had before the court. It was stipulated that all of the evidence received before the commissioner in each of the cases, should be considered in evidence before the court, and that the cases commenced before the commissioner, relating to the two indictments, and the cases commenced before the United States District Court, relating to the same two indictments, should be respectively consolidated. On June 3, 1926, the court made its findings, including one of probable cause, and entered the judgment and orders of removal heretofore mentioned. This judgment was entered in a cause entitled "Consolidated Cases Commissioner's Court 2411 and 2412, District Court 9756, 9757, 9934 and 9935," which numbers designated the several proceedings commenced before the United States commissioner and also those commenced in the United States District Court.
Whatever may have been the defects in the proceedings before the commissioner leading to the arrest of the defendants, the District Court had jurisdiction of the persons of the defendants by virtue of the proceedings in that court on the 4th of March, 1926. On that day an application was made by the government to file new complaints. It was granted, and the court in its order recited:
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