Glaspell v. Northern Pacific R. Co.
144 U.S. 211 (1892)

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U.S. Supreme Court

Glaspell v. Northern Pacific R. Co., 144 U.S. 211 (1892)

Glaspell v. Northern Pacific Railroad Company

No. 1330

Submitted March 14, 1892

Decided April 4, 1892

144 U.S. 211

Syllabus

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.

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