69.

any provision that both plaintiffs may unite in one suit in a state in which either of them is a citizen." The court, referring to several prior cases in this court in which it was held that the word "citizen," as used in the judiciary act of 1789, is used collectively, and means all citizens upon one side of a suit, and if there are several coplaintiffs the intention of the act is that each "plaintiff must be competent to sue, and if there are several codefendants each defendant must be liable to be sued, or the jurisdiction cannot be entertained, held that the same construction must be given to the word “inhabitant" as used in the above paragraph in the act of 1888, and that, if suit were begun in a district whereof the plaintiff was an inhabitant, jurisdiction would only attach if there were no other plaintiffs, citizens and inhabitants of other districts. If this doctrine be also applicable to defendants in local actions, it necessarily follows that suit will not lie in any district of which a defendant is a citizen or inhabitant, if there are inhabitants of other districts also made defendants. As above stated, this practically inhibits all suits against defendants resident in different districts.

A brief review of the history of corresponding provisions in prior acts will show that it has never been supposed that the federal courts did not have jurisdiction of local actions in which citizens of different districts were defendants, and in fact provision was expressly made by law for such contingency. In the eleventh section of the judiciary act of 1789 (1 Stat. 79) is a provision, subsequently incorporated in section 739 of the Revised Statutes, that "no civil suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ." Under this section any number of nonresidents could be joined as defendants if only they were served within the jurisdiction of the court. Ober v. Gallagher, 93 U. S. 199.

But, to obviate any objection that might be raised by reason of the nonjoinder or inability to serve absent defendants, it was provided by the act of July 28, 1839 (5 Stat. 321), subsequently carried into the Revised Statutes (section 737), that "when there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district within which the suit is brought, and did not voluntarily appear, the court may enter(tain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and non-joinder of parties who are not inhabitants of nor found

within the district as aforesaid, shall not constitute matter of abatement or objection to the suit." Construing this act, it was held in Shields v. Barrow, 17 How. 130. that it did not enable a circuit court to make a decree in equity, in the absence of an indispensable party, whose rights must necessarily be affected by such a decree. Says Mr. Justice Curtis (page 141): "It remains true, notwithstanding the act of congress and the forty-seventh rule, that a circuit court can make no decree affecting the rights of an absent person, and can make no decree between the parties before it which so far involves or depends upon the rights of an absent person that complete and final justice cannot be done between the parties to the suit without affecting those rights." This ruling was applied in Barney v. Baltimore City, 6 Wall. 280, to a bill for partition filed by Barney, a citizen of Delaware, in the circuit court of Maryland, against the city of Baltimore and several individuals, citizens of Maryland, and certain other citizens of the District of Columbia. These latter had made a conveyance to one Proud, a citizen of Maryland, for the special purpose of conferring jurisdiction on the federal court; such conveyance being made without consideration, and with an agreement that the grantee would reconvey on request. It was held that the court of chancery could not render a decree without having before it the citizens of the District of Columbia, and that their conveyance to Proud, being merely collusive, conferred no jurisdiction upon the court.

The law remained in this condition until June 1, 1872, when congress, apparently to remove the difficulty suggested by these cases, passed an act (17 Stat. 196, § 13; subsequently incorporated into the Revised Statutes as section 738) providing that "when any defendant in a suit in equity to enforce any legal or equitable lien or claim against real or personal property within the district where the suit is brought, is not an inhabitant of nor found within the said district, and does not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer or demur to the complainant's bill, at a certain day therein to be designated," etc. And then follows the provision, in section 739, that "except in the cases provided in the next three sections, * and the cases

provided by the preceding section [section 738] no civil suit shall be brought in any other district than that of which the defendant is an inhabitant," etc. The "next three sections" are section 740, in which special provision is made for states containing more than one district, requiring the defendant, if a single one, to be sued in the district where he resides, but, if there are defendants in different districts, suit may be brought in either, and a duplicate writ issued against residents of the other districts; section 741,

wherein provision is made for suits of a local nature, where the defendant resides in a different district in the same state from that in which the suit is brought, permitting process to be served in the district where he resides; and section 742, providing that in any suit of a local nature, at law or in equity, where the land, or other subject-matter of a fixed character, lies partly in one district and partly in another, within the same state, suit may be brought in the circuit or district court of either district, etc. These sections (740742) are the "next three sections" mentioned in section 739 as exceptions to the general rule that no civil suit shall be brought against an inhabitant in any other district than his

own.

But, by the act of March 3, 1875, § 1 (18 Stat. 470), a slight change was made in the previous phraseology, to the effect that "no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceedings, except as hereinafter provided." This exception is contained in section 8 of the same act, which deals with the class of cases mentioned in Rev. St. § 738, and provides for publication "in any suit * to enforce

any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought," with a further proviso that "said adjudication shall, as regards such absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district." As no exception was made in that act of the cases provided for by sections 740742, it is at least open to some doubt as to whether suits will lie against nonresident defendants under those sections. So, too, in the act of August 13, 1888 (section 5), there was an express reservation of any jurisdiction or right mentioned in section 8 of the act of congress of which this act was an amendment (that is, the act of March 3, 1875), which, as above stated, is the section permitting suits to enforce any legal or equitable lien upon or claim to real estate to be brought in the district where the property lies, and defendants, nonresidents of such district, to be brought in by publication or personal service made in their own districts. It is entirely true that section 8 of the act of 1875, authorizing publication, does not enlarge the jurisdiction of the circuit court. It does not purport to do so. Jurisdiction was conferred, by the first section of the act of 1888, of "all suits of a civil nature," exceeding $2,000 in amount, "in which there shall be a controversy between citizens of different states;" and this implies that no defendant shall be a citizen of the same state with the plaintiff, but other

wise there is no limitation upon such jurisdiction. Section 8 of the act of 1875, saved by section 5 of the act of 18SS, does, however, confer a privilege upon the plaintiff of joining in local actions defendants who are nonresidents of the district in which the action is brought, and calling them in by publication; thus creating an exception to the clause of section 1, that no civil suit shall be brought in any other district than that of which defendant is an inhabitant. Hence, it appears that the case of Smith v. Lyon really has no bearing, as that case involved only the rights of parties to personal actions residing in different districts to sue and be sued, and was entirely unaffected by the act of 1888 (section 5), which deals with defendants only in local actions, and expressly reserves* jurisdiction * if the suit be one to enforce a lien or claim upon real estate or personal property. The precise question here involved has never been passed upon by this court, but in the only cases in the circuit courts to which our attention has been called the jurisdiction was upheld. American F. L. M. Co. v. Benson, 33 Fed. 456; Carpenter v. Talbot, Id. 537; Ames v. Holderbaum, 42 Fed. 341; McBee v. Railway Co., 48 Fed. 243; and Wheelwright v. Transportation Co., 50 Fed. 709.

In line with these cases, and almost di rectly in point here, is the decision of this court in Goodman v. Niblack, 102 U. S. 556, in which it was held that where a bill was filed to enforce a claim or lien upon a spe cific fund within reach of the court, and such of the defendants as were neither inhabitants of nor found within the district did not voluntarily appear, the circuit court had the power to adjudicate upon their right to or interest in the fund, if they be notified of the pendency of the suit by service or publication in the mode prescribed by Rev. St. § 738. This is a distinct adjudication that defendants who are neither inhabitants of nor found within the district may be cited by publication to appear, and, if this be so, it is difficult to see how the omission of the words "found within the district," in the act of 1888, makes any difference whatever with regard to the right to call absent defendants in by publication. The act of 1875 gave the right to sue defendants wherever they were "found." The act of 1888 requires that they shall be inhabitants of the district. But in both cases an exception is created in local actions, wherein any defendant interested in the res may be cited to appear and answer, provided he be not a citizen of the same state with the plaintiff. So, too, in Mellen v. Iron Works, 131 U. S. 352, 9 Sup. Ct. 781, a suit instituted by a creditor to set aside a conveyance of the real estate and a mortgage upon the personal property of his debtor, made to secure certain preferred creditors, was held to be a suit brought to remove an incumbrance or lien or cloud upon the property, within the meaning of section 8 of the act of 1875, and that the circuit

court was authorized to summon an absent defendant, and to exercise jurisdiction over his rights in the property in suit within the jurisdiction of the court.

Indeed, any other construction of this act would practically nullify section 8 of the act of 1875, permitting the publication of absent defendants, since the entire object of the section is to call in defendants who cannot be served within the district, by reason of their absence or nonresidence.

It follows, then, that if this be a suit covered by section 8 of the act of 1875, the circuit court of the district wherein the land in dispute lies may properly assume jurisdiction. We think that it is such a suit. The bill in question is one for the partition of land, wherein plaintiff avers that he is seised, as tenant in common, of an estate in fee simple, and is in actual possession of the land described, and after setting forth the interests of the other tenants in common, and alleging that no remedy at law exists to enable him to obtain his share of said lands in kind, or of the proceeds, if sold, and that he is wholly without remedy, except in chancery, prays for the partition of the land, and the segregation of his own share from that of the others, and incidentally that certain deeds may be construed, and, if invalid, inay be canceled, and that he may recover his advances for taxes and expenses. This is clearly a bill to enforce a claim and settle the title to real estate.

2. Further objection was made to the jurisdiction of the court upon the ground that it appeared from the face of the bill that the title of some of the parties to the land was in dispute; that such titles must be settled before partition could be made; that the interests of several of the defendants were adverse to each other; and that, as some of these defendants were citizens of the same state, it would raise controversies beyond the jurisdiction of the circuit court to decide. These objections, however, are not within the question certified to us for decision, which is that it had been "adjudged and decreed that this court has not jurisdiction over all of the defendants to this action, because they are not all citizens and residents of the district in which the land sought to be partitioned lies, and are not all found in said district at the time of service of process, although they are all residents and citizens of other states than that in which complainants have residence and citizenship." The objections go not to the jurisdiction of the federal court, as such, but to the maintenance of such a bill in any court of equity in the state of Florida. They are questions proper to be considered on demurrer to the bill, and, as bearing upon such questions, the local practice of the state in that regard may become an important consideration. This court has held in a multitude of cases that where the laws of a particular state gave a remedy in equity, as, for instance, a

bill by a party in or out of possession, to quiet title to lands, such remedy would be enforced in the federal courts, if it did not infringe upon the constitutional rights of the parties to a trial by jury. Clark v. Smith,. 13 Pet. 195; Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495; Reynolds v. Bank, 112 U. S. 405, 5 Sup. Ct. 213; Chapman v. Brewer, 114 U. S. 171, 5 Sup. Ct. 799; Cummingsv. Bank. 101 U. S. 153, 157; U. S. v. Landram, 118 U. S. 81, 89, 6 Sup. Ct. 954; More v. Steinbach, 127 U. S. 70, 8 Sup. Ct. 1067.

This suggestion is the more important in view of a statute of Florida which authorizes a court of equity, in partition cases, "toascertain and adjudicate the rights and interests of the parties," which has apparently been held to authorize the court, in its discretion, to settle the question of title, as incidental to the main controversy, or retain the bill, and refer it to a court of law. Street v. Benner, 20 Fla. 700; Keil v. West, 21 Fla. 508.

These questions, however, are not presented by the record in this case, and are mentioned only as giving color to plaintiff's claim that the existence of controversies between different defendants is not fatal to the jurisdiction of the federal court upon the allegations of this bill.

3. The objection that Eliza B. Anderson was alleged in the bill to be a resident and citizen of the District of Columbia was met by an amended allegation that Anderson was "a citizen of South Carolina, now residing in Washington City, District of Columbia;" and, while this allegation was traversed, it must, for the purpose of this hearing, be taken as true.

As this case was appealed under section 5* of the act of March 3, 1891, upon a question of jurisdiction, no other question can be properly considered; and the decree of the court below must therefore be reversed, and the case remanded for further proceedings in conformity with this opinion.

Mr. Chief Justice FULLER dissented.

(155 U. S. 137) NORTHERN PAC. R. CO. v. HOLMES. (November 12, 1894.) No. 64.

TERRITORIAL COURTS--CONTINUING CASES IN STATE COURT-REVIEW BY UNITED STATES SUPREME COURT.

1. Where a case pending in a territorial supreme court, on a petition for rehearing, at the time the territory becomes a state, is continued in the state court, instead of being removed to the federal court on request, as it might have been, the judgment of the state court, on denying the rehearing, cannot be reviewed by the supreme court of the United States, no federal question being involved.

2. In such case the time that the petition. for rehearing was pending in the territorial court will not be deducted in computing the two years from the rendition of judgment by the territorial court, in which to bring error.

*76

in Error to the Supreme Court of the State of Washington.

James McNaught and A. H. Garland, for plaintiff in error. W. R. Andrews, for defendant in error.

Mr. Chief Justice FULLER delivered the opinion of the court.

James Holmes recovered judgment in the district court of the Fourth judicial district of the territory of Washington against the Northern Pacific Railroad Company. The railroad company prosecuted an appeal therefrom to the supreme court of the territory, and the judgment was affirmed by that court on February 2, 1888. 18 Pac. 76. Thereupon, and on the same day, the supreme court of the territory, on the application of plaintiff in error, entered an order granting it leave to file a petition for rehearing on or before July 17, 1888; giving 60 days after the determination of the petition within which to perfect proceedings upon appeal in the event that the petition should be denied, and staying all proceedings and withholding a remittitur pending the filing and determination of the petition and for 60 days thereafter.

The state of Washington was admitted into the Union November 11, 1889, and on March 8, 1890, an order was entered by the supreme court of the state, reciting the*affirmance of the judgment by the supreme court of the territory and the order of that court of February 2, 1888, and, further, that "the said petition having been filed within the time provided by the order of said court, and having been pending undetermined at the time of the admission of the state of Washington, and the organization of this, the supreme court of the state, and this court having directed the defendant in error to answer said petition, the said answer having been filed within the time provided by said order, and said petition and answer having been taken under advisement by this court, now, on this 8th day of March, A. D. 1890, the court, being fully advised in the premises, denies said petition for rehearing; to which ruling and judgment, as well as the judgment of the supreme court of said territory affirming the judgment of said district court, plaintiff in error, by its counsel, excepts, and said exception is allowed." And it was ordered "that a writ of error to the supreme court of the United States to the judgment of the supreme court of the territory of Washington, now a record of this court, and to the judgment, order, and ruling of this court upon the petition for rehearing, be and hereby is allowed." Supersedeas bond was given and approved, a writ of error issued, and citation signed and served.

It is well settled that if a motion or petition for rehearing is made or presented in season, and entertained by the court, the time limited for a writ of error or appeal

does not begin to run until the motion or pe tition is disposed of. Until then the judg ment or decree does not take final effect, for the purposes of the writ of error or appeal. Smelting Co. v. Billings, 150 U. S. 31, 36, 14 Sup. Ct. 4; Vorhees v. Manufacturing Co., 151 U. S. 135, 14 Sup. Ct. 295.

Under sections 22 and 23 of the act of congress providing for the admission of the state of Washington into the Union (25 Stat. 676, 682, 683, c. 180, printed in the margin 1), this petition, which was pending in the su preme court of the territory at the time of the admission of the state, became a mat-) ter over which the state court had jurisdiction. The court took jurisdiction, and might, in its exercise, have granted a rehearing and reversed the judgment, but, upon consideration, both parties presenting their views, saw fit to refuse the rehearing, and thereby to confirm the action of the supreme court of the territory in affirming the judg ment. It was then that the judgment took final effect for the purposes of the writ of error, and plaintiff in error so regarded it. But plaintiff in error could not take the writ to the supreme court of the territory, for when that court ceased to exist a petition for rehearing was pending, which, after the admission, could not be disposed of by that court, and which plaintiff in error did not deem expedient to withdraw or abandon. And if the petition and the case could have been transferred to the circuit court of the United States because plaintiff in error was a corporation created by the United

1 Sec. 22. That all cases of appeal or writ of error heretofore prosecuted and now pending in the supreme court of the United States upon any record from the supreme court of either of the territories mentioned in this act, or that may hereafter lawfully be prosecuted upon any record from either of said courts, may be heard and determined by said supreme court of the United States. And the mandate of execution or of further proceedings shall be directed by the supreme court of the United States to the circuit or district court hereby established within the state succeeding the territory from which such record is or may be pending, or to the supreme court of such state, as the nature of the case may require. . And each of the circuit, district, and state courts, herein named, shall, respectively, be the successor of the supreme court of the territory, as to all such cases arising within the limits embraced within the jurisdiction of such courts respectively with full power to proceed with the same, and award mesne or final process therein; and that from all judgments and decrees of the supreme court of either of the territories mentioned in this act, in any case arising within the limits of any of the proposed states prior to admission, the parties to such judgments shall have the same right to prosecute appeals and writs of error to the supreme court of the United States as they shall have had by law prior to the admission of said state into the Union.

Sec. 23. That in respect to all cases, proceedings, and matters now pending in the su preme or district courts of either of the territories mentioned in this act at the time of the admission into the Union of either of the states mentioned in this act, and arising within the limits of any such state, whereof the circuit or district courts by this act established might

States (Glaspell v. Railroad Co., 144 U. S. 211, 12 Sup. Ct. 593), that could only have been done upon request, and no request to that effect was preferred. On the contrary, plaintiff in error elected to continue the jurisdiction of the cause in the supreme court of the state, and as no federal question was involved, and the judgment could not take effect, so far as a review of it on error was concerned, until after the state court acted, and only through that action, the writ of error cannot be maintained. Moreover, the judgment of the supreme court of the territory was rendered February 2, 1888, and the writ of error was not brought until more than two years thereafter, and therefore too late, unless the time of the pendency of the petition in that court were deducted, which is quite inadmissible, in view of the fact that the petition remained pending notwithstanding the admission of the state had terminated the existence of the court in which it was originally filed. The result is that the writ of error must be dismissed.

(155 U. S. 141)

NORTHERN PAC. R. CO. v. O'BRIEN. (November 12, 1894.) No. 65.

In Error to the Supreme Court of the State of Washington.

James McNaught, A. H. Garland, and Heber J. May, for plaintiff in error. Reese H. Voorhees and John Paul Jones, for defendant in er

ror.

Mr. Chief Justice FULLER. This case falls within that just decided (Railroad Co. V. Holmes, 15 Sup. Ct. 28), and for the reasons there given the writ of error must be dismissed.

have had jurisdiction under the laws of the United States had such courts existed at the time of the commencement of such cases, the said circuit and district courts, respectively, shall be the successors of said supreme and district courts of said territory; and in respect to all other cases, proceedings and matters pending in the supreme or district courts of any of the territories mentioned in this act at the time of the admission of such territory into the Union, arising within the limits of said proposed state, the courts established by such state shall, respectively, be the successors of said supreme and district territorial courts; and all the files, records, indictments, and proceedings relating to any such cases, shall be transferred to such circuit, district, and state courts, respectively, and the same shall be proceeded with therein in due course of law; but no writ, action, indictment, cause or proceeding now pending, or that prior to the admission of any of the states mentioned in this act, shall be pending in any territorial court in any of the territories mentioned in this act, shall abate by the admission of any such state into the Union, but the same shall be transferred and proceeded with in the proper United States circuit, district or state court, as the case may be: provided, however, that in all civil actions, causes, and proceedings, in which the United States is not a party, transfers shall not be made to the circuit and district courts of the United States, except upon written request of one of the parties to such action or proceeding filed in the proper court; and in the absence of such request such cases shall be proceeded with in the proper state courts.

(155 U. S. 89) PEOPLE OF STATE OF NEW YORK V. ENO.

(October 29, 1894.)

No. 602.

FEDERAL AND STATE COURTS-JURISDICTION-HABEAS CORPUS.

Except in cases of urgency, one in custody under process from a state court should not be released by a federal court on habeas corpus, on the ground that the crime with which he is charged is within the exclusive jurisdiction of the federal courts, or that he is detained in violation of the federal constitution; but the decision of the highest court in the state should be obtained on the question, and this, if adverse, may be reviewed by the supreme court of the United States. Mr. Justice Field and Mr. Justice Shiras dissenting.

Appeal from the Circuit Court of the United States for the Southern District of New York.

John R. Fellows and John D. Lindsey, for the People. George Bliss, for appellee.

* Mr. Justice HARLAN delivered the opinion of the court.

The appellee presented to the court below his petition for a writ of habeas corpus, alleging that he was restrained of his liberty by the warden of the city prison in New York City; that he had not been committed, and was not detained, by virtue of any judgment, decree, final order, or process; that the cause or pretense of such restraint was certain bench warrants issued upon indictments against him in the court of general sessions of the peace of the city and county of New York; and that those indictments, copies of which are exhibited with the petition, charge him with the commission of certain offenses over which that court "has not and never has had jurisdiction." The relief asked was that the petitioner be discharged from the custody of the state authorities. The indictments referred to were five in number, and were based upon the Penal Code of New York, which, among other things, declares any person guilty of forgery in the second degree, and punishable by imprisonment for a term not exceeding ten years, who, with intent to defraud, forges an entry made in any book of records or accounts kept by a corporation doing business within the state, or in any account kept by such a corporation, whereby any pecuniary obligation, claim, or credit is or purports to be created, increased, diminished, dischar-' ged, or in any manner affected; and any person guilty of forgery in the third degree, and punishable by imprisonment for not more than five years, who, with intent to defraud or conceal any larceny or misappropriation of any money or property, alters, erases, obliterates, or destroys an account, book of accounts, record, or writing belonging to or appertaining to the business of a corporation, association, public office or officer, partnership, or individual; or makes a false entry in any such account or book