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(196 U. S. 89) property, who in consideration of the pur

M. H. COURTNEY, Appt., chase agrees to pay off the mortgage, can

V. not raise the question of usury, that being LOUIS A. PRADT, Executor of Merrit B a personal right of the original debtor.

Atwater, Deceased, and William C. AtThe court of appeals also held that the

water. claim for usurious interest was one which survived the death of the person in whom Direct appeal from circuit courtwhen ju the right of action was vested, and under

risdiction is in issue. the laws of Texas a part of his estate, and consequently one that could be sold and 1. The dismissal by a Federal circuit court of bought like any other chose in action. If

à suit against a foreign executor for the so, that claim passed to the trustee in bank- want of jurisdiction in the state court, from ruptcy under § 70 of the bankrupt law [30 which it had been removed for diversity of Stat. at L. 566, chap. 547, U. S. Comp. Stat.

citizenship, does not present a question of 1901, p. 3451), which, in describing the prop

the jurisdiction of the circuit court as a

Federal court, which will authorize a direct erty passing to the trustee, names "prop

appeal under the act of March 3, 1891 (26 erty which prior to filing of the petition he Stat. at L. 827, chap. 517, U. S. Comp. Stat. could by any means have transferred."

1901, p. 549), § 5, to the Federal Supreme The question then presented is whether

Court. this right of action, having once passed to 2. The denial of a motion to remand à cause

which has been removed from the state court the trustee in bankruptcy, was retransferred

to a Federal circuit court does not so preto J. L. Lasater upon the termination of

sent the question of that court's jurisdiction the bankruptcy proceedings, he having re- as to sustain a direct appeal to the Federal turned no assets to his trustee, and having Supreme Court under the act of March 3, failed to notify him or the creditors of this 1891 (26 Stat. at L. 827, chap. 517, U. S. claim for usury, and beginning this action

Comp. Stat. 1901, p. 549), § 5, where such

motion did not, in terms, put in issue the within less than two months after the final

power of the circuit court as a court of the discharge of the trustee. We have held that

United States tu hear and determine the trustees in bankruptcy are not bound to cause, accept property of an onerous or unprofit-3. The objection that an attachment suit in able character, and that they have a reason

aid of an action at law was not cognizable able time in which to elect whether they

in a Federal circuit court, to which it had

been removed from the state court for di. will accept or not. If they decline to take

versity of citizenship, because the proceed. the property, the bankrupt can assert title

ing was equitable in form, is not open to thereto. American File Co. v. Garrett, 110 consideration by a direct appeal to the Fed. U. S. 288, 295, 28 L. ed. 149, 152, 4 Sup. Ct. eral Supreme Court, which is sought to be

maintained under the act of March 3, 1891 Rep. 90; Sparhawk v. Yerkes, 142 U. S. 1,

(26 Stat. at L. 827, chap. 517, U. S. Comp. 35 L. ed. 915, 12 Sup. Ct. Rep. 104; Ses

Stat. 1901, p. 549), § 5, as a case in which sions v. Romadka, 145 U. S. 29, 36 L. ed.

the jurisdiction of the circuit curt was in 609, 12 Sup. Ct. Rep. 799; Dushane v. Beall, issue. 161 U. S. 513, 40 L. ed. 791, 16 Sup. Ct. Rep. 637. But that doctrine can have no

[No. 93.] application when the trustee is ignorant of the existence of the property, and has had Argued December 9, 1904. Decided Janno opportunity to make an election. It can

uary 3, 1905. not be that a bankrupt, by omitting to schedule and withholding from his trustee A United States for the Eastern District of

PPEAL from the Circuit Court of the all knowledge of certain property, can, after his estate in bankruptcy has been finally Kentucky to review a judgment dismissing, closed up, immediately thereafter assert for want of jurisdiction in the state court, title to the property on the ground that a cause which had been removed to the the trustee had never taken any action in Circuit Court from the Circuit Court of respect to it. If the claim was of value (as Powell County, in the state of Kentucky. certainly this claim was, according to the Dismissed for want of jurisdiction. judgment below), it was something to which the creditors were entitled, and this Statement by Mr. Chief Justice Fuller: bankrupt could not, by withholding knowl- Merrit B. Atwater, a citizen of Wisconedge of its existence, obtain a release from sin, and William C. Atwater, a citizen of his debts, and still assert title to the prop-Illinois, were partners, and in 1898 Merrit erty.

B. died testate, having appointed Louis A. The judgment of the Court of Civil Ap- Pradt, likewise a citizen of Wisconsin, his peals is reversed, and the case remanded to executor. The will was duly admitted to that court for further proceedings not in- probate in Wisconsin, and Pradt duly qualiconsistent with this opinion.

fied as executor, and has been and is acting as such. William C. Atwater was one of the Mr. Chief Justice Fuller delivered the legatees under the will.

opinion of the court: The Atwater Land & Lumber Company It appears from the opinions of the cirwas a corporation of Wisconsin, engaged in cuit court, to which we properly may refer buying, owning, holding, and selling real (Loeb v. Columbia Trop. 179 U. S. 472, 45 estate in Kentucky, and Merrit B. Atwater, L. ed. 280, 21 Sup. Ct. Rep. 174), that the at the time of his death, owned stock in court held that the state court had no juthat corporation, on which a dividend was risdiction so far as William C. Atwater declared August 30, 1901, which amounted was concerned unless it had jurisdiction as to $4,757.37. W. C. Atwater was not a against the foreign executor of his deceased stockholder at the time of the declaration partner; that the suit must be treated as if of the dividend, and had not been since against the foreign executor alone; and that 1893.

it could not be maintained against the forCourtney, a citizen of Kentucky, brought eign executor in the state court

, nor in the suit in the circuit court of Powell county, Federal court. And further, that the court Kentucky, against Pradt, executor, and

was not bound to remand the case that tho William C. Atwater, and procured a general order of attachment, under which the sheriff state court might determine that question. summoned the company to answer as gar

The appeal was taken directly to this nishee by delivery of a copy of the attach-court, and cannot be maintained unless the

case comes within the first of the classes ment to the person designated by the company as its agent upon whom process could named in $ 5 of the judiciary act of March be executed, as required by the statutes of 3, 1891, which gives an appeal or writ of Kentucky in that behalf. There was no

error direct “in any case in which the jupersonal service on Pradt, executor, or on

risdiction of the court is in issue; in such William C. Atwater, but a warning order cases the question of jurisdiction alone shall was entered pursuant to statute.

be certified to the Supreme Court from the Pradt, as executor, and William C. At-court below for decision.” [26 Stat. at L. water, filed their petition and bond in the 827, chap. 517, U. S. Comp. Stat. 1901, p. state court for the removal of the cause to 549]. the circuit court of the United States for

It is settled that the question of jurisdicthe eastern district of Kentucky on the tion thus to be certified is the jurisdiction ground of diversity of citizenship, and it of the circuit court as a court of the United was removed accordingly. Pradt, executor, States, and not in respect of its general auand William C. Atwater, entering their ap-thority as a judicial tribunal. Blythe v. pearance in the circuit court for that pur. Hinckley, 173 U. S. 501, 43 L. ed. 783, 19 pose only, moved the court to dismiss the Sup. Ct. Rep. 497; Mexican C. R. Co. v. case "for want of jurisdiction to try same." Eckman, 187 U. S. 429, 47 L. ed. 245, 23 On the same day, Pradt, executor, filed a Sup. Ct. Rep. 211; Louisville Trust Co. v. special demurrer, assigning as causes, inter Knott, 191 U. S. 225, 48 L. ed. 159, 24 Sup. alia, that the court had no jurisdiction of Ct. Rep. 119; Bache v. Hunt, 193 U. S. 523, the person or of the subject-matter. And 48 L. ed. 774, 24 Sup. Ct. Rep. 547. on that day plaintiff moved to remand, no And the general rule is that the certifireasons being given. The circuit court cate is an absolute prerequisite to the exoverruled the motion to remand, sustained ercise of jurisdiction here. Maynard v. the motion to dismiss and the demurrer, Hecht, 151 U. S. 324, 38 L. ed. 179, 14 and entered judgment dismissing the suit Sup. Ct. Rep. 353. Although we have recog- . for want of jurisdiction. Two opinions nized exceptions to this rule when the exwere delivered, because further argument plicit terms of the decree, or even of the orwas permitted, and both are in the record. der allowing the appeal, might properly be No certificate of the question of jurisdiction considered as equivalent to the formal cerwas applied for or granted; but an appeal tificate. Huntington v. Laidley, 176 U. S. was allowed to this court, which was argued 668, 44 L. ed. 630, 20 Sup. Ct. Rep. 526; in due course, together with a motion to Arkansas v. Schlierholz, 179 U. S. 598, 45. dismiss.

L. ed. 335, 21 Sup. Ct. Rep. 229.

But, as said by Mr. Justice Gray in Messrs. William Bullitt Dixon, Alex-Huntington v. Laidley, “the record must disander Pope Humphrey, and Breckin-tinctly and unequivocally show that the ridge & Shelby for appellant.

court below sends up for consideration a Messrs. Neal Brown, Louis A. Pradt, single and definite question of jurisdiction ;' R. D. Hill, and Edwin C. Brandenburg for that is, of the jurisdiction of the court 28 appellees.

a court of the United States. 25 S. C.-14.

(196 U. S. 99) No such state of case is exhibited by this

J. O. COMSTOCK, Appt., record. There is no certificate nor any equivalent therefor. No single and definite

WILLIAM L. EAGLETON. issue as to the jurisdiction of the circuit court as a Federal court is presented.

Appealdistinction between writ of error The case was dismissed for want of juris

and appeal. diction over it, as a suit against a foreign executor, in the courts of Kentucky. The Writ of error, and not appeal, is the proper court had power to so adjudicate. When a

method of obtaining a review in the Federal case has been removed into the circuít court

Supreme Court of a judgment of the supreme on the ground of diversity of citizenship, court of the territory of Oklahoma which afthat court is entitled to pass on all ques

firmed a judgment of the court below sustions arising, including the question of ju

taining a demurrer to, and dismissing with

costs, the petition in an action to recover risdiction over the subject-matter in the

damages for false imprisonment. state courts; or the sufficiency of the service of mesne process to authorize the re

(No. 105.] covery of personal judgment. Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517, Submitted December 15, 1904.

, Decided 15 Sup. Ct. Rep. 559; Wabash Western R.

January 3, 1905. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 Sup. Ct. Rep. 126; De Lima v. Bidwell, 182 U. S. 1, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743; | APPEAL from the Supreme Court of the

Territory of Oklahoma to review a judg. Conley v. Mathieson Alkali Works, 190 U.ment which affirmed a judgment of the DisS. 406, 47 L. ed. 1113, 23 Sup. Ct. Rep. 728. trict Court of Pawnee County, in that Ter. It is true that in this case a motion to re- ritory, sustaining a demurrer to, and dismand was made, but there was nothing to missing, a petition in an action to recover indicate that it rested on the contention damages for false imprisonment. Dismissed that there was a lack of jurisdiction in the for want of jurisdiction. Federal courts as contradistinguished from

See same case below, 11 Okla. 487, 69 Pac. the state courts. It did not in terms put 955. in issue the power of the circuit court as a

The facts are stated in the opinion. court of the United States to hear and deter

Messrs. Andrew Wilson, Noel W. mine the case, and we cannot be called on Barksdale, C. J. Wrightsman, and E. L. to say that there may not have been other Fulton for appellant. grounds for the motion, or to attempt to No counsel opposed. eliminate every other ground for the purpose of bringing the case within the first

THE CHIEF JUSTICE: This was an acclause of § 5.

tion brought by Comstock against EagleWe do not regard the objection now ton in the district court of Pawnee county, urged, that the suit was in equity, and, as Oklahoma, to recover damages for false imsuch, not cognizable by the circuit court, as prisonment in the sum of $5,317.50. open to consideration on this record by di

The petition was demurred to on the rect appeal, but, if it were, it is unavail- ground that it did not state facts sufficient ing on the question of power.

to constitute a cause of action, the demurrer The principal action was an action at law. sustained, and the petition dismissed with If, under existing statutes of Kentucky, the costs. The case was then carried to the suprocess of attachment or garnishment preme court of Oklahoma on error, and the against nonresidents was equitable in form, judgment affirmed. 11 Okla. 487, 69 Pac. as is contended, this could not cut off the 955. right of removal where diversity of citizen- From the judgment of affirmance this apship existed. The right to remove given by peal was allowed and prosecuted to this a constitutional act of Congress cannot be court. taken away or abridged by state statutes, By g 9 of the "Act to Provide a Tempoand the case being removed, the circuit courtrary Government for the Territory of Oklahad power to so deal with the controversy homa,” approved May 2, 1890 (26 Stat. at that the party could lose nothing by his L. 81, chap. 182), it was provided that choice of tribunals. Cowley v. Northern P. "where the value of the property or the R. Co. 159 U. S. 569, 40 L. ed. 263, 16 Sup. amount in controversy" exceeded $5,000, Ct. Rep. 127. In our opinion the appeal “writs of error and appeals from the final was improvidently prosecuted directly to this decisions of said supreme court shall be alcourt, and it must, therefore, be dismissed. I lowed and may be taken to the Supreme

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Court of the United States in the same man- cations of the same mining ground. The ner and under the same regulations as from defendant's location was adjudged invalid the circuit courts of the United States." by the trial court, and its decision was af

Final judgments of the circuit courts of firmed by the supreme court of the state, the United States in actions at law can only on the ground of a failure to comply with be revised on writs of error. Deland v. certain Montana statutes. 28 Mont. 222, 72 Platte County, 155 U. S. 221, 39 L. ed. 128, Pac. 617. These statutes contained regula15 Sup. Ct. Rep. 82; Metropolitan R. Co. tions concerning the location of mining v. District of Columbia, 195 U. S. 322, ante, claims in addition to those prescribed by p. 28, 25 Sup. Ct. Rep. 28; Bevins v. Ram- congressional legislation, and the question is sey, 11 How. 185, 13 L. ed. 657; Sarchet v. as to the validity of those additional reUnited States, 12 Pet. 143,9 L. ed. 1033. quirements. Appeal dismissed.

Section 2319, Rev. Stat. (U. S. Comp. Stat. 1901, p. 1424), provides that "all valu.

able mineral deposits in lands belonging to (196 U. S. 119)

the United States, both surveyed and unsurBUTTE CITY WATER COMPANY, Plff. in veyed, are hereby declared to be free and Err.,

open to exploration and purchase, and the

lands in which they are found to occupation BEN BAKER.

and purchase, by citizens of the United

States and those who have declared their inMining claimslocation of validity of tention to become such, under regulations.

state regulationsdelegation of power-prescribed by law, and according to the loconflict with congressional legislation. cal customs or rules of miners in the several

mining districts, so far as the same are ap1. Supplementary regulations concerning the plicable, and not inconsistent with the laws

location of mining claims, prescribed by a of the United States." state in addition to the congressional regula- Section 2322 (U. S. Comp. Stat. 1901, p. tions, are not invalid on the theory that they 1425) gives to the locators the exclusive were enacted in the exercise of an unlawful

delegation by Congress of legislative power. right of possession and enjoyment of all the 2. The requirement of Mont. Ann. Codes, ş surface included within the lines of their

3612, that the declaratory statement filed locations "so long as they comply with the in the office of the clerk of the county in laws of the United States, and with state, which a mining lode or claim is situated must territorial, and local regulations not in concontain "the dimensions and location of the flict with the laws of the United States govdiscovery shaft, or its equivalent, sunk upon lode or placer claims” and “the location and erning their possessory title.” description of each corner, with the mark- Section 2324 contains this grant of auings thereon," is not invalid as conflicting thority: with congressional legislation prescribing reg.

“Sec. 2324 .(U. S. Comp. Stat. 1901, p. ulations for the location of mining claims.

1426). The miners of each mining district

may make regulations not in conflict with [No. 109.]

the laws of the United States, or with the Argued and submitted December 16, 1904. laws of the state or territory in which the Decided January 3, 1905.

district is situated, governing the location,

manner of recording, amount of work necIN N ERROR to the Supreme Court of the essary to hold possession of a mining claim,

State of Montana to review a judgment subject to the following requirements: The affirming a judgment of the District Court location must be distinctly marked on the of Silver Bow County, in that State, in ground so that its boundaries can be readily favor of plaintiff in an action of ejectment.traced. All records of mining claims hereAffirmed.

after made shall contain the name or names. See same case below, 28 Mont. 222, 72 of the locators, the date of the location, and Pac. 617.

such a description of the claim or claims The facts are stated in the opinion.

located by reference to some natural object Messrs. L. Orvis Evans, W. W. Dixon, or permanent monument as will identify the and Forbis & Evans for plaintiff in error.

claim." Messrs. Robert B. Smith and J. E. Section 2332 (U. S. Comp. Stat. 1901, p. Healy for defendant in error.

1433) makes the statute of limitations for

mining claims of a state applicable for cerMr. Justice Brewer delivered the opinion tain purposes to mining claims under the of the court:

government. This was an action of ejectment brought Section 2338 (U. S. Comp. Stat. 1901, p. in the district court of Silver Bow county, 1436) reads as follows: Montana. The dispute was between two lo- "As a condition of sale, in the absence of

necessary legislation by Congress, the local | United States do not prescribe any time in legislature of any state or territory may which the excavations necessary to enable provide rules for working mines, involving the locator to prepare and record a certifieasements, drainage, and other necessary cate shall be made. That is left to the leg. means to their complete development; and islation of the state, which, as

we have those conditions shall be fully expressed in stated, prescribes sixty days for the excavathe patent."

tions upon the vein from the date of discovSection 2339 (U. S. Comp. Stat. 1901, p. ery, and thirty days afterwards for the prep1437) contains this clause:

aration of the certificate and filing it for “Whenever, by priority of possession, record. In the judgment of the legislature rights to the use of water for mining, agri- of that state this was reasonable time.” cultural, manufacturing, or other purposes,

Kendall v. San Juan Silver Min. Co. 144 have vested and accrued, and the same are U. S. 658, 36 L. ed. 583, 12 Sup. Ct. Rep. recognized and acknowledged by the local 779, turned on the question of compliance customs, laws, and the decisions of courts, by the locator with a regulation prescribed the possessors and owners of such vested by the statutes of Colorado concerning the rights shall be maintained and protected in record of locations, and the decision was the same.”

that a failure to comply rendered the atIn 1893 Congress passed an act (28 Stat. tempted location invalid. In Shoshone Min. at L. 6, chap. 12) relieving from the neces-Co. v. Rutter, 177 U. S. 505, 44 L. ed. 864, sity of the annual labor for that year, "so 20 Sup. Ct. Rep. 726, it was held that a suit that no mining claim which has been regu- brought in support of an adverse claim was larly located and recorded as required by not one of which a Federal court necessarily the local laws and mining regulations shall had jurisdiction, because, as said (p. 508, be subject to forfeiture for nonperformance L. ed. p. 865, Sup. Ct. Rep. p. 727): of the annual assessment for the year 1893," "In a given case the right of possession and a similar statute was enacted in 1894 may not involve any question under the Conin respect to the annual labor for that year. stitution or laws of the United States, but 28 Stat. at L. 114, chap. 142.

simply a determination of local rules and While, in the above sections, there is not customs, or state statutes, or even only a that direct grant of authority to the state mere matter of fact.” to legislate respecting locations as there is Other cases containing similar recognition to miners to make regulations, yet there is might also be cited. a clear recognition of such legislation. All The validity of such state legislation has these statutory provisions, except the last been affirmed by the supreme courts of sevtwo sections referred to, were embodied in eral states. See, in addition to the present the legislation of 1872, and have been in case, Wolfley v. Lebanon Min. Co. 4 Colo. force ever since.

112; O'Donnell v. Glenn, 8 Mont. 248, 19 Acting upon the belief that they were fully Pac. 302; Metcalf v. Prescott, 10 Mont. 283, authorized, nearly all, if not all, the states 293, 25 Pac. 1037; Purdum v. Laddin, 23 in the mining regions have passed statutes Mont. 387, 59 Pac. 153; Sisson v. Sommers, prescribing additional regulations in respect | 24 Nev. 379, 77 Am. St. Rep. 815, 55 Pac. to the location of mining claims, some hav- 829; Copper Globe Min. Co. v. Allman, 23 ing been in force for more than a score of Utah, 410, 64 Pac. 1019; Northmore v. years.

Simmons, 38 C. C. A. 211, 97 Fed. 386. This court has, in many cases, recognized In 1 Lindley on Mines, 2d ed. § 249, the the validity of such state legislation. In author says: Belk v. Meagher, 104 U. S. 279, 284, 26 L. “State statutes in reference to mining ed. 735, 737, Chief Justice Waite, speaking rights upon the public domain must, therefor the court, declared that "a location is fore, be construed in subordination to the not made by taking possession alone, but by laws of Congress, as they are more in the working on the ground, recording, and doing nature of regulations under these laws than whatever else is required for that purpose by independent legislation. the acts of Congress and the local laws and "State and territorial legislation, thereregulations.”

fore, must be entirely consistent with the In Erhardt v. Boaro, 113 U. S. 527, 28 L. Federal laws, otherwise it is of no effect. ed. 1113, 5 Sup. Ct. Rep. 560, it appeared The right to supplement Federal legislation, that there were no mining regulations pre-conceded to the state, may not be arbitrarily scribed by the miners of the district, and it exercised; nor has the state the privilege of was said by Mr. Justice Field (p. 536, L. ed. imposing conditions so onerous as to be rep. 1116, Sup. Ct. Rep. p. 564):

pugnant to the liberal spirit of the congres“We are therefore left entirely to the laws sional laws. On the other hand, the state of the United States and the laws of Colomay not, by its legislation, dispense with the rado on the subject. And the laws of the performance of the conditions imposed by

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