Waggener v. Cheek.

the removal of the cause, conditioned as required by the act of Congress. The clerk of the supreme court certifies a complete transcript of the record of the cause as it remains in that court, but it contains no entry of any further action by it in respect to the same.

U. M. Rose, and B. C. Brown, for the complainants.

O. P. Lyles, and Clapp, Vance, & Anderson, for the defend

ants.

DILLON, Circuit Judge.-From a decree against the complainants on the merits in the inferior state court, they took an appeal to the supreme court of the state and fully submitted the cause to that court, by which it was taken under advisement. While it was in this situation, the complainants filed their petition and affidavit for the removal of the cause to this court under the act of Congress of March 2, 1867. (14 Stats. at Large, 558.) Do the petition and affidavit present a case entitling the complainants to a removal of the cause to this court? This depends upon a proper construction of the act of Congress just mentioned. It is our opinion that the case is not one of which, upon the showing made for the removal, this court can take cognizance. The ground of this conclusion is two-fold:

1. The application for the removal was not made in time. The statute requires the petition for the removal to be made "before the final hearing or trial of the suit." The statute which it purports to amend uses the words, "before the trial or final hearing of the cause." (14 Stats. at Large, 307.) The word "hearing" refers to equity suits; the word "trial" to actions at law. This cause was in equity, and the requirement of the statute is that the application for the removal must be made "before the final hearing." In a case at law it must be before the trial. Where the suit is properly removed, the provision of the act is that it shall

Waggener v. Cheek.

"proceed," in the federal court, "in the same manner as if it had been brought there by original process." There is ground to contend that the statute does not apply in any case when the suit is in the appellate court, but the circumstances of the cause in hand do not require us to decide that point. Suppose there had been a trial at law, a judgment, a bill of exceptions, and a writ of error, and the plaintiff in error, after the cause is filed and when it is pending in the appellate court, removes it to this court, can we review the alleged errors? Surely not. Is the party who effected the removal to have a new trial here as of right? Clearly not. It would appear, then, that a law case cannot be transferred to this court while it is still pending in the state appellate tribunal. This is certainly so where the trial was by jury. (The Justices v. Murray, 9 Wall. 274.) Under the words applied to both classes of cases, "final hearing or trial," will it be held that a law action cannot be transferred from the state appellate tribunal, while an equity suit may be? The argument in favor of the right to transfer an equity cause while it is pending on appeal is, that it is there to be heard de novo, and that an appeal in chancery cases is only a re-hearing in a higher court. (3 Dan. Ch. Pl. & Pr. 1602.) But the question turns on the intention of Congress in the use of the words, final hearing; and did it not mean by this language the trial of an equity cause upon the merits in the court of original jurisdiction, rather than the re-hearing in an appellate tribunal? But, as above observed, it is not necessary in this case to decide the question, and we pass it without further remark. It may be conceded, that where a suit has been remanded by the appellate court to the inferior state court for a new trial or hearing on the merits upon further testimony, that the cause may be removed from that court to the federal court, as in Akerly v. Vilas, 8 Am. Law Reg. (N. S.) 229; ib. 558; or that an equity cause may be thus removed directly from the appellate court while it is

Waggener v. Cheek.

still pending therein and before it has been there finally heard, as in Sneed v. Brownlow, 4 Coldwell (Tenn.), 254. This may be conceded, and yet the removal in the case before us be unauthorized. Clearly the application to remove must be made before the final hearing. Granting that the final hearing is the hearing in the appellate court, when must the application for the removal be made? The answer of the statute is before the final hearing. But this cause was submitted to the supreme court on the merits, on briefs, and by the court taken under advisement months before the petition and affidavit for removal were presented to that court. Taking the most liberal view for the complainants, the cause was finally heard when it was submitted to the court for decision upon the merits. The language of the statute is not that the application for removal shall be before final judgment or decree, but before final hearing, and in an equity suit, the word "hearing" means a trial upon the merits.

2. The cause was not properly removable on the affidavit and petition, for other reasons. It was sought to be removed only as to one of the defendants, namely: Mark R. Cheek, the administrator of Elijah Cheek, deceased. But there were other defendants, and necessary defendants, to the bill. Not to mention others, it is sufficient to refer to the trustee, Lyles, who would be a necessary party to the relief sought. Again, some of the defendants had a crossbill upon which substantial relief was prayed. The decree of the state court passed upon all these matters, and from that decree the complainants appealed to the supreme court of the state, in which, as to all these parties, the suit was pending at the time the application for removal was made. Now the complainants ask for a removal as to one of the defendants only, or rather show cause for removal as to one only. What becomes of the cause as to the other defendants? Under the act of 1867 there seems to be no authority to a

Wells v. Riley.

plaintiff to remove a case as to part of several defendants; certainly there is no authority for such removal where the other defendants, not named in the affidavit or petition for removal, are necessary parties to the final determination of the controversy.

An order will be entered dismissing the case out of the court for want of jurisdiction.

ORDERED ACCORDINGLY.

NOTE. As to act of March 2, 1867, see Johnson v. Monell, 1 Woolw. 390; Sands v. Smith, 1 Dillon, 290, 295; Case v. Douglas, ib. 299; Allen v. Ryerson, ante.

In The Justices v. Murray, 9 Wall. 274, the supreme court held that it was not competent for Congress, under the seventh amendment of the constitution, to provide for the removal of a judgment in a state court in which the cause had been tried by a jury to the federal court for a retrial on the facts and law.

WELLS v. RILEY.

1. The value of improvements made in good faith by an occupying claimant under color of title are allowed to him by the statute of Iowa in the manner and to the extent therein provided.

2. The Iowa statute in relation to occupying claimants construed, and applied to an occupant of lands falling within the Des Moines river grant.

(Before Mr. Justice MILLER.)

Occupying Claimant.- Color of Title.- Good Faith.

THIS was originally an action of ejectment, and the plaintiff recovered in this court, and the judgment was affirmed by the supreme court as stated below. The present questions arise out of the application of the defendant, under the occupying claimant's statute of the state. (Revision of Iowa, ch. 97.)

Wells v. Riley.

This statute enacts that "Where an occupant of land has color of title thereto, and in good faith has made any valuable improvements thereon, and is afterwards in the proper action found not to be the rightful owner thereof," he may be allowed in the manner therein provided the value of the improvements.

The facts are as follows: The husband of the defendant, Hannah Riley, settled upon the premises in question in 1855, and in 1857 he died, leaving the defendant and several minor children. The defendant applied to the land officers to be permitted to enter the land. Her application was refused until the decision of the case of Litchfield against the Dubuque & Pacific Railroad Company, in 1860. She then renewed her application and was permitted to enter the land. She proved up in 1862, and obtained a patent in 1863. Plaintiff claimed title to the land under a deed from the Des Moines navigation company, and the navigation company claimed title from the state of Iowa, and the state of Iowa under act of Congress of 1846, and subsequent acts. The circuit court of the United States held that the title was in the plaintiff, Wells. The defendant appealed to the supreme court of the United States, and the decision of the court below was affirmed. Then the defendant, Hannah Riley, filed a petition as an occupying claimant, asking for an appraisement of her improvements, and by agreement of counsel for both parties, the court appointed three commissioners to examine the premises and report to the court the value of the improvements made by the defendant, and in regard to the value of timber cut off and taken away by her, and the value of the rents.

The commissioners in their report found: 1st. Value of improvements, including taxes paid by the defendant, $2,823.89. 2d. Value of rent and use of said land, $300.3d. Value of timber cut and destroyed by defendant on said land, $170.50. This leaves balance in favor of Hannah Riley of $2,353.39.