Sanders v. Farwell

Knowles, J. It appears by the bill of exceptions presented in this case, that the appellant filed his bill for the foreclosure of a vendor’s lien “ in the office of the clerk of the district court of the United States in and for the first judicial district of the Territory of Montana.” That afterward, in pursuance of the prayer of the bill, a writ of subpoena, issued out of said court, directed to the respondent, Don C. Farwell, commanding him to personally appear before the judge of the district court of the United States of America for the first judicial district of the Territory of Montana, within ten days to answer a bill of complaint exhibited against him in said court. This subpoena was duly served and returned by the United States marshal for Montana Territory. The respondent appeared in this action and demurred to the bill on the two following grounds : “First. That said court hath not jurisdiction of the person of the defendant. “ Second. That the said court hath not jurisdiction of the subject of the action.?’ [602] In the first place there are no such courts in Montana Territory as “ the district court of the United States in and for the first judicial district of the Territory of Montana.” The district courts for the Territory have conferred upon them the same jurisdiction by our organic act as is exercised by the circuit and district courts of the United States. Yet this does not make them courts entitled to that appellation. In the case of Peter Clinton et al. v. Paul Englebrecht et al., the supreme court of the United States says : “The judges of the supreme courts of the Territory are appointed by the president under the act of congress, but this does not make the courts they are authorized to hold courts of the United States. This was decided long since in the American Insurance Company v. Carter, 1 Pet. 546, and in the later case of Benner v. Porter, 9 How. 235. There is nothing in the constitution which would prevent congress from conferring the jurisdiction which they exercise if the judges were elected by the people of the Territory and commissioned by the governor. They might be clothed by the same authority to decide all cases arising under the constitution and laws of the United States subject to the same revision.” Again : “There is no supreme court of the United States, in the sense of the constitution, in the Territory of Utah.” This decision no longer leaves it an open question as to whether this bill was addressed to any court having an existence in this Territory. In the next place, allowing that the intention of the appellant was to appeal to the jurisdiction conferred upon the district courts of the Territory coinciding with that exercised by the district and circuit courts of the United States, the question presented is, was the demurrer well taken % It will be seen by reference to Brightley’s Digest, 126-130, that the circuit court of the United States has jurisdiction “of all suits of a civil nature at common law or in equity, when the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a [603] party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State.” Also, that it has jurisdiction of certain cases in law or equity arising under the revenue laws of the United States. The bill shows upon its face that both appellant and respondent are citizens of Montana Territory, and the action is to procure a vendor’s lien. This shows conclusively that the district court, exercising the jurisdiction of the circuit court of the United States, would have no jurisdiction of the action. It does not come within the enumerated class of actions over which that court, by law, is authorized to exercise jurisdiction. By a reference to pages 230, 231 of Brightley’s Digest, it will be seen what jurisdiction congress has conferred upon the district courts of the United States. The power to determine actions in equity is not conferred. Neither the circuit or district courts of the United States have any jurisdiction but what is conferred upon them by congress. This is an action in equity. The appearance of the defendant did not confer jurisdiction upon the court. The right to determine the action presented in the bill, if not conferred by law, could not be conferred upon the court by consent of parties. Hence, we hold that the demurrer was well taken, and the ruling of the court below should be sustained. If this could be treated as an action in the district court for the Territory, exercising its powers as a territorial court, there is no doubt but that the appearance of the defendant in the action and the filing of a general demurrer to the bill would be a waiver of the irregularity of the service of the subpoena by the United States marshal. We do not think, however, that this should be so treated. The court in which the bill purports to be filed, the prayer for a subpoena and the service of the same by the United States marshal for the Territory, precluded the idea that there was any intention, on the part of the appellant, to commence his action in this court, and appeal to what is commonly termed its territorial jurisdiction. For these reasons the judgment of the court below is Affirmed.