Statement of the Case.

appellate jurisdiction, and that the absence of such certificate is fatal to the maintenance of the appeal. See likewise Shields v. Coleman, ante, 168.

Appeal dismissed.

STEVENS'S ADMINISTRATOR v. NICHOLS.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

The denial by a state court of an application to amend a petition for the removal of the cause to a Federal court is not the denial of a right secured by the Constitution of the United States.

MOTION to dismiss or affirm. In January, 1881, the defendant in error as plaintiff commenced a proceeding in the Circuit Court of Pettis County, Missouri, to procure the issue of executions against Robert S. Stevens and another as stockholders in the Texas & Atlantic Refrigerator Car Company, against which he had previously recovered a judgment. This proceeding was based upon section 736, Rev. Stats. Missouri, 1879 (now section 2517, Rev. Stats. 1889). The proceeding was removed by the defendants to the Circuit Court of the United States for the Western District of Missouri. In that court upon proper pleadings a trial was had resulting in a verdict and judgment in favor of the plaintiff and against each defendant for a separate amount. Stevens brought the judgment against him to this court by writ of error, but on examination it was found that the petition for removal was defective, in that it failed to allege the existence of diverse citizenship at the time of the commencement of the proceeding as well as at the time of the application for the removal. The case was, therefore, sent back to the United States Circuit Court, with instructions to remand it to the state court. Stevens v. Nichols, 130 U. S. 230. This order was carried into effect by the United States Circuit Court. In the state court thereafter an application was made for leave to amend the petition for the removal

Opinion of the Court.

so as to include an allegation of diverse citizenship at the time of the commencement of the proceeding. This application was denied. Subsequently a trial was had and a judgment rendered in favor of the plaintiff and against the defendant Stevens, which judgment was affirmed in the Supreme Court of the State. Whereupon defendant Stevens sued out this writ of error.

Mr. George P. B. Jackson for the motion.

Mr. George A. Madill, Mr. John M. Holmes, and Mr. James A. Carr opposing.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

The Supreme Court of the State held that the refusal of the trial court to permit the defendant to amend his petition for removal was proper. Amendments of pleadings or other proceedings are as a rule matters of discretion with the trial court, and a writ of error will not lie to review its action in respect thereto. Walden v. Craig, 9 Wheat. 576; Chirac v. Reinicker, 11 Wheat. 280; United States v. Buford, 3 Pet. 12; Matheson's Administrators v. Grant's Administrator, 2 How. 263.

The denial by a state court of an application to amend a petition for removal is therefore not the denial of any right secured by the Constitution of the United States. Crehore v. Ohio & Mississippi Railway, 131 U. S. 240; Pennsylvania Co. v. Bender, 148 U. S. 255. The judgment is

Affirmed.

Statement of the Case.

ORCHARD v. ALEXANDER.

PIERCE v. FRACE.

ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.

Nos. 192, 193. Argued and submitted March 13, 1895. - Decided April 1, 1895.

The Commissioner of the General Land Office may direct the proper local land officer to hear and pass upon charges of fraud in the final proof of a preemption claim upon which the requisite cash entry has been paid, and has jurisdiction to review the judgment of the local land officer in respect thereof; and the Secretary of the Interior has jurisdiction to review such judgment of the Commissioner, and to order such an entry, shown to be fraudulent, to be cancelled.

WHILE these two cases differ in their particular facts, they agree in the question involved, and for convenience may be considered together. As the opinion of the Supreme Court of the State of Washington was filed in the second case, the special facts of that will be stated. The action was commenced in the District Court of the Territory of Washington, sitting in and for the county of Pierce.

The complaint alleged that the plaintiff was the owner and entitled to the possession of a certain described tract or parcel of real estate situate in the county of Pierce, and prayed judgment for the recovery of possession, together with rents, issues, and profits.

The answer, beyond a general denial, set up by way of equitable defence that on December 20, 1880, the land described in plaintiff's complaint was unoccupied, unappropriated public land of the United States, and that on that day the plaintiff filed his declaratory statement therefor under the preëmption laws of the United States; that on February 13, 1883, he made his final proof, and on March 12, 1883, his cash entry was allowed by the register and receiver of the local land office; that on August 7, 1883, the defendant filed in the office of the Commissioner of the General Land Office, and afterward with the local land officers, his corroborated affidavit, in which he alleged that plaintiff had at no time estab

Statement of the Case.

lished his residence on the land; that he had failed to improve and cultivate the same as required by law, and that the cash entry had been procured by fraud; that on May 16, 1885, the Commissioner of the General Land Office ordered a hearing on those charges before the local land officers, and that in pursuance of such order the plaintiff and defendant appeared before those officers on July 13, 1885, for a trial of the questions raised and presented by the defendant's affidavits; that a trial was had, evidence was submitted, and the case argued by counsel, and thereupon the local land officers found as facts that the plaintiff had at no time established his residence on the land embraced in his entry, and that he had failed to improve and cultivate the land as required by law, and, as a conclusion of law therefrom, that the plaintiff's entry should be cancelled; that the plaintiff appealed to the Commissioner of the General Land Office, who, on June 3, 1886, affirmed the decision of the local land officers; that he took a further appeal to the Secretary of the Interior, who, on March 31, 1888, sustained the Commissioner of the General Land Office, and cancelled plaintiff's entry; that after this defendant filed upon the land under the homestead laws of the United States, made final proofs thereon, paid to the government of the United States the required price, and on July 26, 1889, received from the receiver of the land office a patent certificate for the land, by virtue whereof he claimed to be the owner and entitled to the possession.

To this answer an amended reply was filed, in which the plaintiff alleged that the proceedings initiated by the defendant were wholly void on the ground that the officers referred to had no jurisdiction over the lands or of the plaintiff, for the reason that the United States had theretofore sold and disposed of the land to plaintiff and received from him the sum of $400, in consideration of which sum the United States had undertaken and agreed to execute and deliver to him a patent. He set forth in detail that he had,, in accordance with the preemption laws of the United States and the requirements of the General Land Office, published notice of his intention to make final proof; that on the date named in

Counsel for Defendant in Error.

such publication he had appeared with his witnesses before the local land officers and made such final proof, and paid to them the land office fees and the sum of $400, the legal price of the land; that they had accepted such final proof as sufficient and received such sum of money, and executed and delivered to him a duplicate receiver's receipt therefor, and that thereupon he became entitled to have and receive from the United States, in the due course of the administration of the General Land Office, a patent for the land; that no lawful proceedings had ever been taken by the United States to rescind the contract so entered into between the government and himself, nor had the sum of $400, or any part thereof, ever been repaid or tendered to him by the government. He denied that the defendant had, in his affidavits, alleged that the plaintiff failed to improve and cultivate the land as required by law, or that his entry had been procured by fraud. He also denied that the decision of the Commissioner of the General Land Office was affirmed by the Secretary of the Interior, except as to finding that plaintiff had not made his residence upon the land.

To this amended reply the defendant demurred on the ground that it did not contain facts sufficient to constitute a defence to the affirmative matter set up in the answer. The demurrer was sustained, the case at the time of the hearing being in the Superior Court of the State of Washington in and for the county of Pierce, Washington having been admitted as a State since the commencement of the action. No further amendment being desired, judgment was entered on the pleadings, in favor of the defendant. This judgment was affirmed by the Supreme Court of the State, 2 Washington, 81, whereupon plaintiff brought this writ of error.

Mr. W. H. Pritchard for plaintiff in error. Mr. S. F. Phillips and Mr. F. D. McKenney were with him on his brief.

Mr. C. C. Lancaster, (with whom were Mr. John P. Judson and Mr. W. C. Sharpstein,) for defendants in error submitted on their brief.