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tion of property in the county, assessed for taxation, twenty-four per
cent, and officially notified him of their action. He refused to act upon
the notice, and a writ of mandamus was issued from the Supreme Court
of the Territory, to compel him to do so. He declined to obey the
writ, was cited for contempt, was adjudged guilty, and was committed
to prison until he should comply. There was no evidence, and nothing
tending to show that he had any pecuniary interest in the increase.
The case being brought here by writ of error and on appeal, held, that
as there was nothing to show that the plaintiff in error and appellant
was interested in the increase to the extent of five thousand dollars,
therefore, under the statute of March 3, 1885, c. 355, 23 Stat. 443, this
court had no jurisdiction. Caffrey v. Oklahoma Territory, 346.
6. By a petition filed by Jackson against Black in the District Court of Kay
County, Oklahoma Territory, the following case was made : On the
17th day of November, 1896, Jackson made a homestead entry upon the
S. W. 1 sec. 26, T. 28, R. 2, east I. M. The same land prior to that date
had been embraced in a homestead entry made by Black, but that entry
was finally held for cancellation by the Secretary of the Interior, who
by a decision rendered October 26, 1896, denied Black's motion for
review and allowed Jackson to make entry of the land. After that
decision Black continued to remain in possession of the west eighty
acres of the tract, and refused and neglected to vacate the same, although
requested to do so. He had upon the land a barbed wire fence and
other improvements attached to the realty. It was alleged that he was
financially unable to respond in damages for any injury he was causing
the plaintiff by trespassing upon the land, and that plaintiff had no
adequate remedy other than by this suit. The relief asked was a
mandatory injunction to restrain the defendant from entering upon or in
any manner trespassing upon or using any portion of the land embraced
in the plaintiff's homestead entry; from removing or in any manner
destroying the fence or other improvements on the lands that were
permanently attached thereto; and for such other and further relief as
the court deemed just and right. The defendant filed an answer, but
it was withdrawn that he might file a demurrer. He demurred to the
application for an injunction upon the grounds, among others, that it
did not state facts sufficient to constitute a cause of action and the court
was without jurisdiction of the subject-matter of the action. The
demurrer was overruled, and the defendant after excepting to that
ruling filed an amended answer. In this answer he set up title in him-
self as a homestead settler, set forth the manner in which it had been
acquired, alleged that the value of the property was $6000, and prayed
judgment. In his original answer he claimed that he was entitled to a
trial by jury, and in his amended answer he insisted that his rights
could not be disposed of in equity before the court only. The trial
court sustained a demurrer to the answer, and the defendant declining
to further answer, judgment was rendered for the plaintiff as prayed
for in the application for a mandatory injunction, the defendant being
enjoined from in any manner entering upon the premises in question
or exercising any control or possession over them except for the pur-
pose of removing therefrom his improvements, including buildings and
fences for which thirty days' time was given, which judgment was sus-
tained by the Supreme Court of the Territory. Held: (1) That this
court has jurisdiction as the amount involved is beyond the jurisdic-
tional amount; (2) that the case made out by the plaintiff was not
such as to entitle him to a mandatory injunction, and that the court
of original jurisdiction erred in determining the cause without a jury.
Black v. Jackson, 349.
7. For the reasons stated in the opinion in Black v. Jackson, ante, 349, the
court holds that the issue of fact involving the right of possession of
the premises in dispute could not properly be determined without the
aid of a jury, unless a jury was waived; and that the case made by the
plaintiff was not such as to entitle him to a mandatory injunction.
Potts v. Hollen, 365.
8. A Federal question, which was decided in the court below, is involved
in this suit. American Express Company v. Michigan, 404.
9. On writ of error or appeal, the first and fundamental question is that
of jurisdiction, first of this court, and then of the court from which
the record comes. This question the court is bound to ask and answer
for itself, even when not otherwise suggested, and without respect to
the relation of the parties to it. Great Southern Fire Proof Hotel Co.
v. Jones, 449.
10. Captain Carter, of the corps of engineers, in the army of the United
States, was duly and regularly tried before a legally convened court
martial, was found guilty of the charges made against him, and was
sentenced to dismissal; to be fined; to be imprisoned; and to publica-
tion of crime and punishment; and the sentence was duly approved
and confirmed. On a motion in his behalf the United States Circuit
Court for the Second Circuit issued a writ of habeas corpus, to inquire
into the matter, which resulted in the dismissal of the writ, and the
remanding of Carter to custody. He took an appeal to the Circuit
Court of Appeals for the Second Circuit, which affirmed the judgment
below, and this court denied an application for a writ of certiorari to
review that judgment. An appeal and writ of error was allowed on
the same day by a Judge of the Circuit Court to this Court. Held, That
the appeal and writ of error could not be maintained, as they fall di-
rectly within the ruling in Robinson v. Caldwell, 165 U. S. 359, where it
was held that the judiciary act of March 3, 1891, does not give a de-
feated party in a Circuit Court the right to have his case finally deter-
mined both in this court and in the Circuit Court of Appeals on inde-
pendent appeals. Carter v. Roberts, 496.
11. When cases arise which are controlled by the construction or application
of the Constitution of the United States, a direct appeal lies to this
court, and if such cases are carried to the Circuit Courts of Appeals,
those courts may decline to take jurisdiction, or where such construc-
tion or application is involved with other questions, may certify the
constitutional question and afterwards proceed to judgment, or may
decide the whole case in the first instance. But when the Circuit Court
of Appeals has acted on the whole case its judgment stands unless re-
vised by certiorari to or appeal from that court in accordance with the
act of March 3, 1891. Ib.
12. The substantial relief sought in this case against the attaching creditors
and the matter in dispute was the defeat of distinct and separate claims
of each attaching creditor, so far as it affected the real estate owned
by Scott, and as no defendant was asserting a claim which aggregated
the amount required to confer jurisdiction upon this court, the case is
dismissed for want of jurisdiction. Chamberlin v. Browning, 605.
13. A record showing an instruction by the Circuit Court directing a jury
that the plaintiff is entitled to recover in his action under a state law
upon which the plaintiff relies for recovery, to which instruction a gen-
eral exception is reserved by the defendant, does not disclose a case in
which it is claimed that the law of a state is in contravention of the
Constitution of the United States, within the meaning of section 5, of
the act of March 3, 1891, where the record of the Circuit Court does not
affirmatively show that any issue as to the statute was raised by the
pleadings, and where the record does not affirmatively show that said
exception to said instruction was upon the ground that said statute was
in contravention of the Constitution of the United States, or that the
constitutionality of said statute was otherwise presented or considered
or passed upon by the Circuit Court. Cincinnati, Hamilton & Dayton
Railroad Co. v. Thiebaud, 615.
14. The act of March 3, 1891, does not contemplate several separate appeals
of the Texas Court which is attacked in this case may be the subject
of collateral attack in the courts of the United States, sitting in the
same territory in a suit between citizens of Louisiana and citizens of
Texas. Howard v. De Cordova, 609.
6. By c. 95, $$ 13, 14 of the Laws of Texas of 1847 and 1848, the affidavit by
the plaintiff or his attorney as to the want of knowledge of the names
of the parties defendant or their residence is made an essential prere-
quisite of the jurisdiction of the court to issue an order for publication.
In the state court the affidavit was therefore jurisdictional in its char-
acter, and its verity was directly assailed by the averments of the present
bill, which were admitted by the demurrer. Ib.
See PATENT FOR INVENTION, 3.
C. JURISDICTION OF THE COURT OF CLAIMS.
Keim was honorably discharged from the military service by reason of dis-
ability resulting from injuries received in it. He passed the Civil Ser-
vice examination, and, after service in the Post Office Department, was
transferred to the Department of the Interior at his own request. Soon
after he was discharged because his rating was inefficient. No other
charge was made against him. Held that the courts of the United
States could not supervise the action of the head of the Department of
the Interior in discharging him. Keim v. United States, 290.
D. JURISDICTION OF STATE COURTS.
A bill in equity in a state court to foreclose a common law lien upon a raft
for towage services, is not an invasion of the exclusive admiralty juris-
diction of the District Courts, but is a proceeding to enforce a common
law remedy and within the saving clause of section 563 of a remedy
which the common law is competent to give. Knapp, Stout & Co.
Company v. McCaffrey, 638.
1. If the Circuit Court of the United States, after sufficient service on a de-
fendant, erroneously declines to take jurisdiction of the case or to
enter judgment therein, a writ of mandamus lies to compel it to pro-
ceed to a determination of the case, except where the authority to is-
sue a writ of mandamus has been taken away by statute. In re Gross-
2. A proceeding for a mandamus is "a suit” within the meaning of that
term as employed in Rev. Stat. $ 709. American Express Company v.
1. United States v. Ortiz, 176 U. S. 422, affirmed and followed, to the point
that, in order to justify the confirmation of a claim under an alleged
Mexican grant, under the act of March 3, 1891, c. 539, 26 Stat. 854, it is
essential that the claimants establish, by a preponderance of proof, the
validity of their asserted title. United States v. Elder, 104.
2. The mere approval, by the governor, indorsed on a petition presented
to him for a grant, before a reference to ascertain the existence of the
* prerequisites to a grant, is not the equivalent of a grant. Ib.
3. In order to vest an applicant under the regulations of 1828, with title in
fee to public land, it was necessary that the grant should be evidenced
by an act of the governor, clearly and unequivocally conveying the
land intended to be granted, and a public record in some form was re-
quired to be made of the grant; and the action of the legislative body
could not lawfully be invoked for approval of a grant, unless the expe-
diente evidenced action by the governor, unambiguous in terms as well
as regular in character. Ib.
4. The mere indorsement by a Mexican governor of action on the petition,
before any of the prerequisite steps mentioned in the regulations of
1828 had been taken to determine whether, as to the land and the ap-
plicants, the power to grant might be exercised, was a mere reference
by the governor to ascertain the preliminary facts required to justify
an approval of an application, and had no force and effect as an actual
grant of title to the land petitioned for. Ib.
5. Although the documents in question in this case, executed by the prefect
and the justice of the peace, fairly import that those officials assumed
authority to grant something as respected the land in question, they
did not, in 1845, possess power to grant a title to public lands. Ib.
1. The fact that in a state court plaintiff and defendant make adverse claims
to a mining location under the mining laws of the United States (Rev.
Stat. $ 2325), does not of itself present a federal question within the
meaning of Rev. Stat. $ 709. De Lamar's Gold Mining Co. v. Nesbitt, 523.
2. Where the plaintiff based his right to recover upon an act of Congress
suspending the forfeiture of mining claims for failure to do the required
amount of work, and the decision of the court was in favor of the right
claimed by him under this statute, the defendant is not entitled to a
writ of error from this court to review such finding. Ib.
1. The city of New Orleans commenced an action in March, 1895, in the
Civil District Court for the Parish of Orleans, in Louisiana, to recover
from Werlein a tract of land of which he was in possession, having
acquired title under the following circumstances: In March, 1876, one
Klein commenced an action against the city, to recover principal and
interest on certain city bonds, and obtained judgment for the same in
1876. Under a writ of fieri facias real estate of the city was seized to
satisfy the judgment, and was advertised for sale. The city commenced
a suit against Klein to prevent the sale, and obtained an interlocutory
injunction. After hearing, this injunction was dissolved, and the com-
plaint was dismissed. The property was then sold under the judicial
proceeding to a purchaser through whom Werlein claims title. This
suit was brought by the city to set aside that sale, on the ground that
it was null and void, because the real estate was dedicated to public
use long before the alleged sale, and formed part of the public streets