Dill v. Ebey,
229 U.S. 199 (1913)

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U.S. Supreme Court

Dill v. Ebey, 229 U.S. 199 (1913)

Dill v. Ebey

No. 191

Argued March 17, 1913

Decided May 26, 1913.

229 U.S. 199


Section 723, Rev.Stat., declaring that suits in equity shall not be sustained where a plain, adequate and complete remedy may be had at law, by its own terms applies only to courts of the United States, and does not apply to a territorial court, the procedure of which has been prescribed according to the law of an adjoining state, and to c. 18, Rev.Stat., which does not include § 723.

Even if a demurrer in an action in the United States Court of Indian Territory, on the ground that the action should be at law instead of in equity, does amount to an assertion of right under § 723, Rev.Stat., that section is so plainly inapplicable to the practice in such court that no substantial federal question is raised that would warrant

Page 229 U. S. 200

this Court in reviewing, under § 709, Rev.Stat., the judgment of the the court to which the case was transferred on statehood.

Demurrer in the territorial court, on the ground that the action should be at law and not in equity, is not such a demand for a jury trial as to amount to specially setting up a right under the trial by jury provision of the federal Constitution.

In order to entitle plaintiff in error to have this Court review a judgment of the state court in an action transferred to that court from the territorial court after statehood, the federal question should be specially set up in the state court at the proper time; he cannot rely on a premature assertion of the right in the territorial court.

Writ of error to review, 27 Okl. 584 dismissed.

The facts, which involve the jurisdiction of this Court to review judgments of the state court under § 709, Rev.Stat., and Judicial Code, § 237, and whether a federal question exists and was properly and specially set up in the state court, are stated in the opinion.

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