Upon the trial of this case in the District Court in Dakota, a
verdict was returned, November 24, 1588, in favor of plaintiff for
$12,545.43, and judgment was rendered accordingly November 26,
1888. On November 28, 1888, the court made an order by consent
extending the time for serving notice of intention to move for a
new trial, for motion for new trial, and for settlement of a bill
of exceptions until January 28, 1889, which time was subsequently
extended by order of court for reason given, to February 28, and
thence again "for cause" to March 28, 1889, upon which day the
following order was entered:
"The defendant having served upon plaintiff a proposed bill of
exceptions herein, the time for settlement of same is hereby
extended from March 28, 1889, to April 10, 1859, and the time
within which to serve notice of the intention to move for new
trial, and within which to move for new trial, is hereby extended
to April 13th, 1859."
The time was again extended to May 31, 1889, and on the 23d day
of that month the following order was entered:
"The date for settling the bill of exceptions proposed by the
defendant herein is hereby extended to June 29, 1859. Defendant may
have until ten days after the settling of said bill within which to
serve notice of intention to move for a new trial, and within which
to move for a new trial in said action."
This was the last order of extension. On December 14, 1859,
there was filed in the office of the clerk of the district court a
notice of motion for new trial, which was as follows:
"Take notice that the motion for a new trial herein will be
brought on for argument
Page 144 U. S. 212
before the court at chambers at Jamestown, Dakota, on September
l2, 1889 at 10 o'clock A.M., or as soon thereafter as counsel can
be heard."
On the margin of this notice appeared this endorsement "Hearing
continued until the 21st September, 1889. Roderick hose, Judge."
The notices and motion seem to have been served September 3, 1889.
The bill of exceptions was signed August 30, 1889, and filed
September 3, 1889. The certificate thereto concluded thus:
"Filed as a part of the records in this action this August 30th,
1889, and within the time provided by law, as enlarged and extended
by orders of the judge of this Court."
On February 17, 1890, the judge further certified:
"The above and foregoing certificate is hereby modified and
corrected so as to conform to the facts and record in the case by
striking out all that part of it in the two last lines thereof
preceding my signature and after the words and figures 'August
30th, 1889.'"
On November 2, 1889, the State of North Dakota was admitted into
the union.
Held:
(1) That this bill of exceptions was not settled and filed
within the time allowed by law or under any order of the court.
(2) That the alleged motion for a new trial not having been
filed until December 14, 1889, was not made, and no notice of
intention to make it was given, within the time allowed by law or
by any order of the court.
(3) That a renewal of notice and motion after the state was
admitted, if it could have been made, would necessarily have been
in the state court, whose jurisdiction would have attached to
determine it.
The Court stated the case as follows:
This was an action brought by Glaspell against the Northern
Pacific Railroad Company February 24, 1885, in the District Court
for Stutsman County, in the Sixth Judicial District of the
Territory of Dakota, to recover damages for deceit in the sale by
defendant to plaintiff of 2,240 acres of land. Upon the trial of
the case in that court, a verdict was returned, November 24, 1888,
in favor of plaintiff for $12,545.43, and judgment was rendered
thereon November 26, 1888, for said amount, with costs, taxed at
$64.15. On November, 28, 1888, the court made an order by consent
extending the time for serving notice of intention to move for a
new trial, for motion for new trial, and for settlement of a bill
of exceptions, until January 28, 1889, which time was subsequently
extended by order of court for reason given to February 28th, and
thence again "for cause" to March 28, 1889, upon which day the
following order was entered:
Page 144 U. S. 213
"The defendant having served upon plaintiff a proposed bill of
exceptions herein, the time for settlement of same is hereby
extended from March 28, 1889, to April 10, 1889, and the time
within which to serve notice of the intention to move for new
trial, and within which to move for new trial, is hereby extended
to April 13, 1889."
The time was again extended to May 31, 1889, and on the 23d day
of that month the following order was entered:
"The date for settling the bill of exceptions proposed by the
defendant herein is hereby extended to June 29, 1889. Defendant may
have until ten days after the settling of said bill within which to
serve notice of intention to move for a new trial, and within which
to move for a new trial in said action."
This was the last order of extension.
On December 14, 1889, there was filed in the office of the Clerk
of the District Court for Stutsman County, North Dakota, a notice
of intention to move for a new trial and a notice of a motion for
new trial. The notice of intention stated that the motion would be
made upon the bill of exceptions, etc., and the notice of motion
was as follows:
"Take notice that the motion for a new trial herein will be
brought on for argument before the court at chambers at Jamestown,
Dakota, on September 12, 1889 at 10 o'clock A.M., or as soon
thereafter as counsel can be heard."
On the margin of this notice appeared this endorsement: "Hearing
continued until the 21st September, 1889. Roderick Rose,
Judge."
The notices and motion seem to have been served September 3,
1889. The bill of exceptions was signed August 30, 1889, and filed
September 3, 1889. The certificate thereto concluded thus:
"Filed as a part of the records in this action this August 30,
1889, and within the time provided by law, as enlarged and extended
by orders of the judge of this Court."
On February 17, 1890, the judge further certified:
"The above and foregoing certificate is hereby modified and
corrected so as to conform to the facts and record in the case by
striking out all that part of it in the two last lines thereof
preceding my signature, and after the words and figures 'August
30th, 1889.' "
Page 144 U. S. 214
On November 2, 1889, the State of North Dakota was admitted into
the union. On the 7th of December 1889, there was filed in the
District Court for Stutsman County, North Dakota, the petition of
the defendant stating that it is a corporation created under acts
of Congress, that the action was commenced and was now pending in
said district court, setting forth the trial, verdict, and
judgment, the settlement and allowance of the bill of exceptions
August 30, 1889, the service of notice of intention to move for a
new trial, the continuance of the hearing of the motion until
September 21, 1889, and alleging that the motion had not been
decided, but was now pending, that the matter in controversy
exceeded $2,000, exclusive of costs; that the action was one
arising under the laws of the United States, and to which,
moreover, petitioner had a defense arising under such laws, that
the action arose and was commenced in the Territory of Dakota and
within the limits of that portion of the territory which had since
been admitted into the union as the State of North Dakota, that the
action was pending in the District Court of Stutsman County at the
time of the admission of the state, and
"is a suit of which the Circuit Court of the United States for
the District of North Dakota might have had jurisdiction under the
laws of the United States had such Circuit Court of the United
States for the District of North Dakota been in existence at the
time of the commencement of said action,"
and that the petitioner is entitled under the acts of Congress
in such cases made and provided, and more particularly under the
act of Congress approved February 22, 1889, to enable the people of
North Dakota, etc., to form a constitution and state government and
to be admitted into the union, to remove said suit into the Circuit
Court of the United States for the District of North Dakota for
proceedings therein, and petitioner accordingly tenders bond, etc.
Bond in the usual form on removal was filed at the same time with
the petition. On March 14, 1890, the clerk of the district court
certified to copies of the petition and bond, and also that he
refused
"to transmit the files, records, and proceedings in said cause
to the United States Circuit Court for the District of North
Dakota
Page 144 U. S. 215
for the sole reason the judge of the District Court for Stutsman
County has forbidden me so to do."
On March 26, 1890, the defendant applied to the Circuit Court of
the United States for the District of North Dakota for an
alternative writ of certiorari directed to the judge of the
District Court of the Fifth Judicial District within and for
Stutsman County, North Dakota, upon the affidavit of the attorney
for the defendant, together with copies of the petition and bond
duly certified by the clerk of the state court. The affidavit was
to the effect that
"After the admission into the union of the State of North Dakota
and prior to the filing of said petition in the office of the Clerk
of the District Court for Stutsman County, your petitioner did not
in any manner invoke the aid or action of the state court in said
cause; that during the period aforesaid, the state court did not
make any orders or exercise any act of jurisdiction in said cause,
save that all the papers, files, and proceedings and records
therein remained and now remain in the care and custody of the
clerk of said court for Stutsman County, as the successor in office
of the clerk of the territorial district court wherein said action
originated, was tried, and was pending at the date of the admission
of the State of North Dakota into the union,"
and that the legal fees due the clerk of the state court had
been tendered, and demand made that he transmit the files, records,
and proceedings to the United States court, which he refused to do.
Thereupon an alternative writ of certiorari was issued in said
cause directed to the judge of the District Court for the Fifth
Judicial District of North Dakota requiring him to show cause,
etc., to which the clerk of the state court, by direction of the
judge of said court, made a return setting up the institution of
the action, the verdict and judgment, the various orders extending
the time for settling the bill of exceptions, the signing of the
bill August 30, 1889, and the certificates of that date and of
February 17, 1890, etc. The return also stated that "an execution
was issued on said judgment, February 17, 1890, and is now in the
hands of the sheriff of Stutsman County." The clerk further
certified that at no time had the defendant demanded a certified
copy or transcript of the
Page 144 U. S. 216
files, records, and proceedings, but that he demanded that the
clerk transfer to the circuit court the original files and
proceedings in the action.
A motion was made April 7, 1890, to discharge the order to show
cause, and overruled, and the writ of certiorari ordered to issue
July 11, 1890, requiring the clerk of the District Court of
Stutsman County to transmit to the United States court at
Bismarck
"all the files, records, and proceedings of said case, and
certified copies of any entries in the books of all records
remaining in said District Court of Stutsman County in this
cause."
The writ thereupon issued, and was complied with July 28, 1890.
A motion to remand was then made in the circuit court and denied,
and on October 10, 1890, a motion for a new trial was heard and
taken under advisement, and granted November 3, 1890. 43 F.
900.
The case was subsequently retried in the circuit court, the
plaintiff insisting throughout upon his objection to the
jurisdiction of the court, and resulted in a verdict for plaintiff
for $1,120 on which judgment was entered, with costs taxed at
$249.95. From that judgment this writ of error is prosecuted.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
The Constitution of North Dakota was submitted to a vote of the
people on the first Tuesday in October, 1889, falling that year on
the first day of the month, at which time all the state and
district officers created and made elective by the instrument,
including the judges of the supreme and district courts, were
elected, it being also provided that they should take the required
oaths of office within sixty days after the proclamation of the
President admitting the state. This was
Page 144 U. S. 217
issued November 2, 1889, but during the interval, from October 1
to the qualification of the judges, the continuity of the courts
was preserved by the sixth section of the schedule to the
Constitution, Laws N.Dakota 1891, p. 55, which reads thus:
"§ 6. Whenever any two of the judges of the supreme court
of the state, elected under the provisions of this constitution,
shall have qualified in their offices, the causes then pending in
the supreme court of the territory on appeal or writ or error from
the district courts of any county or subdivision within the limits
of this state, and the papers, records, and proceedings of said
court, shall pass into the jurisdiction and possession of the
supreme court of the state, except as otherwise provided in the
Enabling Act of Congress, and until so superseded, the supreme
court of the territory and the judges thereof shall continue with
like powers and jurisdiction as if this constitution had not been
adopted. Whenever the judge of the district court of any district
elected under the provisions of this constitution shall have
qualified in his office, the several causes then pending in the
district court of the territory within any county in such district,
and the records, papers, and proceedings of said district court,
and the seal and other property pertaining thereto, shall pass into
the jurisdiction and possession of the district court of the state
for such county, except as provided in the Enabling Act of Congress
and until the district courts of this territory shall be superseded
in the manner aforesaid, the said district courts and the judges
thereof shall continue with the same jurisdiction and power, to be
exercised in the same judicial districts respectively, as
heretofore constituted under the laws of the territory."
The twenty-third section of the Act of Congress of February 22,
1889, entitled
"An act to provide for the division of Dakota into two states,
and to enable the people of North Dakota, South Dakota, Montana,
and Washington to form constitutions and state governments, and to
be admitted into the union on an equal footing with the original
states, and to make donations of public lands to such states,"
is as follows:
"SEC. 23. That in respect to all cases, proceedings, and
Page 144 U. S. 218
matters now pending in the supreme 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 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."
25 Stat. c. 180, 676, 683.
This section embodies the view thus expressed by Mr. Justice
Clifford, speaking for the Court in
Baker v.
Morton, 12 Wall. 150,
79 U. S.
153:
"Whenever a territory is admitted into the union as a state, the
cases pending in the territorial courts
Page 144 U. S. 219
of a federal character or jurisdiction are transferred to the
proper federal court, but all such as are not cognizable in the
federal courts are transferred to the tribunals of the new state.
Pending cases where the federal and state courts have concurrent
jurisdiction may be transferred either to the state or federal
courts by either party possessing that option under the existing
laws."
By its terms, cases exclusively of federal jurisdiction are
consigned to the courts of the United States, and cases exclusively
of state jurisdiction to the courts of the state, while the proviso
applies to cases of concurrent jurisdiction, which may proceed in
the state courts or be transferred on request to the United States
courts. But in order to such transfer, the action, cause, or
proceeding must be "pending."
Assuming that, because defendant was a corporation created by
the United States, this was a case
"whereof the circuit or district courts by this act established
might have had jurisdiction under the laws of the United States had
such courts existed at the time of the commencement"
of the case, and that if it stood on motion for new trial, it
was so far pending as to be susceptible of removal, what was the
fact when the petition was filed in the state court, December 7,
1889?
By section 5343 of the Compiled Laws of Dakota of 1887, referred
to by counsel for defendant, it was provided that
"an action is deemed to be pending from the time of its
commencement until its final determination upon appeal, or until
the time for appeal has passed, unless the judgment be sooner
satisfied."
But the meaning of the act of Congress is not to be determined
by provisions of that character in territorial laws. If this case
had gone to judgment, and no motion for a new trial had been made,
or, if made, had been abandoned or overruled prior to the admission
of the state, then there was no cause, proceeding, or matter
pending which would justify the circuit court in taking
jurisdiction.
Under section 5216 of the Dakota Code, already referred to,
appeals "must be taken within two years after the judgment shall be
perfected by filing the judgment roll."
The conclusion that cases in the Dakota local courts are
Page 144 U. S. 220
pending, without action therein, for two years after rendition
of judgment, so as to be capable of being transferred on request
into the circuit court, is quite inadmissible.
The record of cases of exclusive federal jurisdiction which have
gone to judgment should, indeed, be transmitted to the circuit
court, and the judgments there enforced; but where final judgment
has been rendered in cases of concurrent jurisdiction, no reason
can be assigned for, nor do the terms of the act of Congress
contemplate, such a transfer.
By section 5090 of the Compiled Laws of Dakota,
"The party intending to move for a new trial must, within twenty
days after the verdict of the jury if the action were tried by
jury, or after notice of the decision of the court if the action
were tried without a jury, serve upon the adverse party a notice of
his intention, designating the statutory grounds upon which the
motion will be made and whether the same will be made upon
affidavits, or the minutes of the court, or a bill of exceptions,
or a statement of the case,"
etc.
Under section 5092
"The application for a new trial shall be heard at the earliest
practicable period after service of notice of intention, if the
motion is to be heard upon the minutes of the court, and in other
cases, after the affidavits are served or the bill of exceptions or
statement, as the case may be, is filed, and may be brought to a
hearing in open court or before the judge at chambers, in any
county in the district in which the action was tried, by either
party, upon notice of eight days to the adverse party, specifying
the time and place of hearing,"
etc.
Section 5083 provides:
"When a party desires to have exceptions taken at a trial
settled in a bill of exceptions, he may, within thirty days after
the entry of judgment if the actions were tried with a jury, or
after receiving notice of the entry of judgment if the action was
tried without a jury, or such further time as the court in which
the action is pending or a judge thereof, may allow, prepare a
draft of a bill and serve the same, or a copy thereof, upon the
adverse party. Such draft must contain all the exceptions taken
upon which the party relies. Within twenty days after such service,
the
Page 144 U. S. 221
adverse party may propose amendments thereto and serve the same
or a copy thereof upon the other party. The proposed bill and
amendments must, within ten days thereafter, be presented by the
party seeking the settlement of the bill to the judge who tried or
heard the case, upon five days' notice to the adverse party, or be
delivered to the clerk of the court for the judge. . . ."
Section 5093 reads:
"The court or judge may, upon good cause shown, in furtherance
of justice, extend the time within which any of the acts mentioned
in sections 5083 and 5090 may be done, or may, after the time
limited therefor has expired, fix another time within which any of
such acts may be done."
Section 4939 provides:
"The court may likewise, in its discretion and upon such terms
as may be just, allow an answer or reply to be made or other act to
be done, after the time limited by this Code, or by an order
enlarge such time, and may also, in its discretion and upon such
terms as may be just, at any time within one year after notice
thereof relieve a party from a judgment, order, or other proceeding
taken against him through his mistake, inadvertence, surprise, or
excusable neglect, and may supply an omission in any
proceeding,"
etc.
In
St. Croix Lumber Co. v. Pennington, 2 Dak. 467, the
supreme court of the territory decided that under the code as it
then existed, if a bill of exceptions was not presented for
settlement within the time fixed by statute or such other time as
might be allowed by the court or judge, no power existed for its
allowance. But the Supreme Court of North Dakota, in
Northern
Pacific Railroad Co. v. Johnson, 1 N.D. 354, held that under
sections 4939 and 5093 of the Compiled Laws, the district court
could, after the time granted for settling a bill had expired,
without making an order extending the time, and against objection,
settle and allow such bill, the order of settling operating to
extend the time until the date of actual settlement, and that
"until the time for appeal has expired, all of the various steps
leading up to and including a motion for a new trial may, with
respect
Page 144 U. S. 222
to time, after statutory time has elapsed, be taken at any time
allowed by the sound judicial discretion of the trial court. This
court will presume that such discretion is properly exercised in
all cases until the contrary appears."
In
Moe v. Northern Pacific Railroad Co., 50 N.W. 715,
however, the court held that the authority conferred by section
5093 to extend the time to settle bills of exceptions and
statements, after the statutory periods for so doing had
expired,
"is not in absolute, nonreviewable discretion, but, on the
contrary, such discretion is a sound judicial discretion, and can
be exercised only upon the conditions named in the statute,
i.e., 'upon good cause shown in furtherance of justice.'
Where the cause shown is spread out in full upon the record in the
court below, and an objection to the action of the court below in
settling the bill or statement is properly made, this Court, upon a
motion to purge its records, will review the cause shown, and if,
in the opinion of this Court, good cause was not shown for settling
the bill or statement after time, such motion will be granted, and
the bill or statement will be stricken out."
In the case at bar, the time within which to settle a bill of
exceptions was extended six times. The first was by consent of
counsel, the second for reasons given, the third, as asserted,
"upon good cause shown," and the fourth, fifth, and last extension
assigned no ground. The last order of extension expired June 29,
1889, defendant having ten days after the settling of the bill
within which to serve notice of intention to move for new trial and
within which to move for a new trial. The bill of exceptions was
nevertheless signed August 30, 1889, and filed September 3. The
certificate originally stated not only the date, but that the
settlement was "within the time provided by law, as enlarged and
extended by orders of the judge of this Court," but subsequently
these words were stricken out by the judge, and the question
whether the bill was improvidently signed or not was left open,
unless the rule be applied as subsequently laid down by the supreme
court of the state, that the settlement, whenever made, in itself,
operated to extend the time. Notice of the intention to move
Page 144 U. S. 223
and of the motion appear to have been given on the third of
September, returnable on September 12, 1889, and the hearing
appears to have been extended by the judge until September 2. Here
the record becomes silent.
It is nowhere disclosed that the defendant appeared to prosecute
its motion on the 21st of September, and whatever liberality might
be indulged under the provisions of the territorial code as now
expounded by the supreme court of the state, we are not prepared to
hold, in passing upon the question before us, that any motion was
pending on the 7th of December, 1889, there being no evidence
whatever that a motion was ever made except the action of the court
assigning the hearing of a proposed motion for a day more than two
months before, which came and went without such hearing, the
meditated motion having apparently been waived and abandoned.
This bill of exceptions was not settled and filed within the
time allowed by law or under any order of the court. The alleged
motion for a new trial was not filed until December 14, 1889, and
had not been made, and no notice of intention to make it given,
within the time allowed by law or by any order of the court. If
such notice of intention could lawfully have been given or renewed,
or such motion have lawfully been made, within the view of the
state tribunal, notwithstanding the expiration of time, this had
not been done, and the motion was not pending, within the intent
and meaning of the twenty-third section of the Enabling Act, when
the application for removal was made, even if a removal could have
been had thereunder, if such a motion had been then pending. And
the renewal of notice and motion after the state was admitted, if
it could have been made, would necessarily have been in the state
court, whose jurisdiction would have attached to determine it. On
August 22, 1890, notice was given that "the motion for a new trial
heretofore made in this action" would be brought on for hearing in
the circuit court on September 5, 1890, and the record recites that
on October 10, 1890, "defendant moves for a new trial." The motion
could not be treated as having come over from the territorial
court, nor
Page 144 U. S. 224
could such a motion be made in the circuit court, as final
judgment precluded the transfer.
We are of opinion that the motion to remand should have been
sustained, and therefore
Reverse the judgment and remand the case to the circuit
court with directions to send it back to the District Court for the
Fifth Judicial District, Stutsman County, North Dakota, and to
return the original files to that court.
