« ForrigeFortsett »
between all who had interests, and was ex-
Lumber & Timber Company? If the bank But whatever was doubtful or disputable
*The objections to testimony assigned re
CYRUS A. BROWN, Plff. in Err.,
It was not satisfied, appellants say, because it covered other property beside the sheep. This is an insufficient reason. If the debt it secured was paid there was no reason for retaining the lien on any property. But, whatever the reason, it was retained and affected the title. That is the material circumstance, and not in whose name it stood. It was in the chain of the title and affected GEORGE CURLEY, alias George Cully, Pl it. It would have been found if looked for, and would have notified the bank of the transactions which conducted to it and caused it to be made subject to the mortgages of the appellees. We therefore think the *territo
rial courts committed no error where they assigned priority to those mortgages. Nor was it error to subordinate the attachment and judgment of the Riordan Mercantile Company to them. That company had, according to the finding of the court, actual notice.
The territorial court found that on the 18th of December, 1893, there were one thousand head of ewes remaining out of all the sheep which existed on July 10, 1890, the date of the mortgages to appellees; that the remainder of the ewes, all of the male sheep and the lambs had died, been consumed, sold, or lost. The findings are absolutely silent as to whether there were or were not other sheep in existence at that time, or at the time the decree was entered. We infer from the briefs of counsel that there were others, -the increase of those mortgaged; and there
(See S. C. Reporter's ed. 631-638.)
Appellate jurisdiction of the United States
The appellate jurisdiction of a capital case from the United States court for the northern district of the Indian territory, given by act of Congress of March 1, 1895, to the appellate court of the United States for that territory, is exclusive, and supersedes the provisions of the acts of February 6, 1889, and March 3, 1891, respecting the jurisdiction of the Supreme Court of the United States.
This court has no appellate jurisdiction of capital cases from the United States court for the northern district of the Indian territory. Such appellate jurisdiction is vested exclusively in the United States court of appeals in the Indian territory.
[Nos. 249, 250.]
is a contention as to whether these are cov- Submitted April 25, 1898. Decided Octoered by the lien of the mortgages.
ber 24, 1898.
the increase of such ani-IN ERROR to the United States Court in
Under the rule that the incident follows the principal, a mortgage of domestic animals Covers mals, though it is silent as to such increase. This court said in Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 69 [32: 854], by Mr. Justice Harlan, "according to the maxim, partus sequitur ventrem, the brood of all tame and domestic animals belongs to the owner of the dam or mother." | 2 Bl. Com. 390. See also Pyeatt v. Powell, decided by the circuit court of appeals for the eighth circuit, 10 U. S. App. 200, and cases cited.
Statement by Mr. Justice Shiras:
court for the northern district of the Indian | the Supreme Court of the United States has
Messrs. John K. Richards, Solicitor General, and P. L. Soper, United States Attorney, Northern District of the Indian Territory, for the United States, in support of the motions to dismiss.
Messrs. John H. Koogler and John
Mr. W. H. Twine for plaintiff in error
of the court:
1889 (Sup. R. S. vol. 1, 2d ed. 670), there
was established a United States court for
On the 17th day of December, A. D. 1897, he was convicted of the crime of murder in said court, and the judgment of the court sentencing him to death was made on the 24th day of December, A. D. 1897 On the 1st day of February, A. D. 1898, the plaintiff in error filed a petition in said court for a writ of error from the Supreme Court of the United States, and filed an assignment of errors. On February 8, A. D. 1898, a writ of error was allowed in said cause, and on the same day a citation was issued in said cause, service of which was acknowledged on the 16th day of February, A. D. 1898. Pursuant to the writ of error in said cause a transcript of the record in said cause was filed in the office of the clerk of the Supreme Court of the United States on the 23d day of February, A. D. 1898. The government has filed its  motion to dismiss the writ of error in said the Indian territory. The act conferred no cause, for the reason that the Supreme Court jurisdiction over felonies, but by the fifth of the United States has no jurisdiction un-section, exclusive original jurisdiction was der the law to entertain said writ of error, nor conferred over all offenses against the laws to pass upon any of the alleged errors in said of the United States committed within the record, because said court has no appellate Indian territory, not punishable by death or jurisdiction of said cause. tion was conferred in all civil cases between by imprisonment at hard labor. Jurisdiccitizens of the United States who are residents of the Indian territory where the value of the thing in controversy shall amount to one hundred dollars or more. The final judg ment or decree of the court, where the value of the matter in dispute, exclusive of costs, exceeds one thousand dollars, may be reviewed and reversed or affirmed in the Supreme Court of the United States upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a circuit court.
George Curley, alias George Cully, plaintiff in error in case No. 250, was indicted in the United States court for the northern district of the Indian territory, sitting at Vinita, charged with the crime of murder, which indictment was filed in open court on the 21st day of October, A. D. 1897. On the same day the defendant took a change of venue to the United States court at Muscogee, and a transcript of the record and the original indictment was forwarded to the clerk of the United States court at Muscogee, Indian territory. On the 13th day of December, A. D. 1897, at the December term of the United
States court for the northern district of the Indian territory, at Muscogee, the indictment heretofore found was referred to the grand jury, and upon the same day the grand jury returned into open court at Muscogee, Indian territory, a new indictment against the defendant for murder. On the 22d day of December, A. D. 1897, the defendant was found guilty of the crime of murder, and on the 24th day of December, A. D. 1897, judg ment of the court was pronounced upon said defendant. sentencing him to death.
On February 11, 1898, plaintiff in error, through his attorney, W. H. Twine, filed a petition for a writ of error from the Supreme Court of the United States, and also filed his specification of error. A writ of error was allowed, on the 19th day of February, 1898, and on the 23d day of February, 1898, service of the citation issued out of this court was acknowledged. A transcript of the entire record was filed in the office of the clerk of the Supreme Court of the United States on March 1, 1898. The government has filed its motion to dismiss the writ of error in said case for the reason that
On March 1, 1895, Congress passed an act (Sup. R. S. vol. 2, pp. 392-398) dividing the Indian territory into three judicial districts, and providing for the appointment of two additional judges. This act extended the jurisdiction of the United States court in said territory to capital cases and other infamous crimes, the jurisdiction over which had theretofore been vested in the United States courts at Fort Scott, Kansas, Fort Smith, Arkansas, and Paris, Texas, and provided that all such offenses should be prosecuted in the United States court in the Indian terri
tory after the first day of September, 1896.
The eleventh section is as follows: "That the judges of said court shall constitute a court of appeals, to be presided over by the judge oldest in commission *as chief justice of said court. And said court shall have such jurisdiction and powers in said Indian territory, and such general superintending control over the courts thereof, as is conferred upon the supreme court of Arkansas over the courts thereof by the laws of said state, as provided by chapter forty of Mansfield's Digest of the Laws of Arkansas, and the provisions of said chapter, so far as
they relate to the jurisdiction and powers | the penalty of death, the conclusion might
"And appeals and writs of error from said
These enactments clearly provide that writs of error in criminal cases shall be taken to the appellate court of the United States for the Indian territory, and dispose of the question before us unless there are other provisions of the acts of Congress which prevent such a conclusion.
The counsel for defendants in error contend that the act of February 6, 1889 (Sup. R. S. vol. 1, 2d ed. 638), gave to the Supreme Court the right to review. The sixth section of that act is in the following words:"
"That hereafter, in all cases of conviction of crime, the punishment of which provided by law is death, tried before any court of the United States, the final judgment of such court against the respondent shall, upon the application of the respondent, be re-examined, reversed, or affirmed by the Supreme Court of the United States upon a writ of error, under such rules and regulations as said court may prescribe."
be too technical that Congress intended to
It is true that, in the present cases the writs of error were sued out directly to the
It will be observed that when this law was passed the United States court for the Indian territory did not possess jurisdiction in capital cases. That jurisdiction was sub-trial court, whereas in the case of Cross the sequently conferred. But, even if it be conceded that the provisions of the act of February 6, 1889, might have attached or become applicable to the judgments of the United States court for the Indian territory when jurisdiction in capital cases was extended to that court, the intention of Congress is manifested to have been otherwise by the provision above cited from the act of March 1, 1895, whereby it is provided that writs of error in capital cases shall be taken to the court of appeals of the United States for the Indian territory.
This court had occasion to consider the effect of the act of Feruary 6, 1889, in respect to the judgments of the supreme court of the District of Columbia in capital cases, in the case of Cross v. United States, 145 U. S. 571 [36: 821], and it was there said:
"It is contended on behalf of the government that the writ of error will not lie because the supreme court of the District of Columbia is not a court of the United States, within the intent and meaning of the section. McAllister v. United States, 141 U. S. 174 [35: 693], is cited with the decisions referred to therein as sustaining that view, but it is to be remembered that that case referred to territorial courts only, and, moreover, if the disposal of the motion turned on this point, the words 'any court of the United States,' are so comprehensive that, used as they are in connection with convictions subject to
writ of error was taken to the judgment of the supreme court of the District affirming the judgment of the trial court, and therefore some of the language quoted from the opinion in the latter case is not strictly applicable. But the reasoning of the court, showing that it was unlikely that Congress intended a review by two other courts than the trial court, is applicable. It is not to be supposed that Congress, when it provided by the act of March 1, 1895, for a review or writ of error in the court of appeals for Indian territory, regarded the sixth section of the act of February 6, 1889, as also applicable.
The counsel for the defendants in error cite in their briefs the fifth and thirteenth sections of the act of March 3, 1891, establishing the United States circuit courts of appeals, providing that appeals or writs of error may be taken from the district or circuit courts direct to the Supreme Court of the United States in cases of capital crimes, and providing that appeals and writs of error may be taken from the decisions of the United States court in the Indian territory to the Supreme Court of the United States, or to the cirucit court of appeals in the eighth circuit, in the same manner and under the same regulations as from the circuit or district courts of the United States.
Of course as, when this act was passed, the
ministratrix of Henry Korte, Deceased, et
DOLORITAS MARTIN DE CORDOBA,
(See S. C. Reporter's ed. 638–641.)
Appeal from supreme court of territory—re
had no jurisdiction over capital crimes, Con- | WILLIAM NAEGLIN, Annie Naeglin, Adgress did not contemplate any appeal or writ of error in such cases. And when, by the act of March 1, 1895, jurisdiction of the United States court in the Indian territory was extended to capital cases, and a court of appeals was established, with power to entertain appeals and writs of error, the act of March 3, 1891, cannot be regarded as applicable in such cases. Where a statute provides for a writ of error to a specified court of appeals it must be regarded as a repeal of any previous statute which provides for a writ of error to another and different court. The decisions of the court of appeals of the United States in the Indian territory are final except so far as they are made subject to review by some express provision of law. In the eleventh section of the act of March 1, 1895, it is provided that "appeals and writs of error from the final decision of said appellate court shall be allowed and may be taken to the circuit court of appeals for the eighth judicial circuit in the same manner and under the same regulations as appeals are taken from the circuit courts of the United States;" but it is not claimed by the counsel for the plaintiff in error that this provision applies to capital cases; and see the case of Folsom v. United States, 160 U. S. 121 [40: 363].
It has been held by this court that the court established in the Indian territory, though a court of the United States, is not
a district or circuit court of the United States. Re Mills, 135 U. S. 268 [34: 110]. We accept the contention of the Solicitor General on behalf of the government, that the court of appeals in the Indian territory, being a court of the United States, is analogous to the supreme court of the District of Columbia, and bears the same relation to the trial court in the Indian territory as the supreme court of the District of Columbia bore to the trial court in the District.
And it was held in Ex parte Bigelow, 113 U. S. 329 [28: 1006], that no appeal could be taken or writ of error sued out to the supreme court of the District of Columbia in a
capital case, the court saying: "No appeal or writ of error in such case as that lies to this court. The act of Congress has made the judgment of that court conclusive, as it had a right to do, and the defendant, having one review of his trial and judgment, has no special reason to complain." Re Heath, 144 U. S. 92 [36: 358]; Cross v. Burke, 146 U. S. 84 [36: 897].  *Our conclusion is that we have no appellate jurisdiction of capital cases from the United States court for the northern district of the Indian terory, and that such appellate jurisdiction is vested exclusively in the United States court of appeals in the Indian territory.
The motion is allowed, and the writs of error in these cases are dismissed. 171 U.S.
On appeal from the supreme court of a territory, when no jury was had and there are no questions as to the admission or exclusion of testimony, the only question to consider is whether the findings of fact sustain the decree.
A release by the mother of illegitimate children, in her own right and for them, of all claims against the father, without the sanction of any tribunal, will not cut off a right of the children to inherit from him.
A natural guardian has no power to release the claim of a ward to an inheritance without the sanction of some tribunal.
Argued October 13, 1898. Decided October
APPEAL from the Supreme Court of the
See same case below, 7 N. M. 678.
Statement by Mr. Justice Brewer:
At the time of entering the decree, and also | Foundry & Machine Co. 151 U. S. 47 [38: 1989]of overruling a "petition for rehearing, no 229]. statement of facts was prepared by the supreme court, and no other determination of the facts than such as appears from the direction to enter a decree in conformity with the findings and recommendations of the master. But after the supreme court had adjourned, an application was made to have the findings of fact made by the master in-serve that no doubtful question of law is precorporated into the record as a statement and finding of facts by that court, for the purpose of an appeal, and upon that application the following order was entered:
The order signed in vacation by the several members of the supreme court cannot be considered an order of the court. Assuming, however, for the purposes of this case, that, in view of the general language in the opinion of the court, we may take the findings of the master as its statement of facts, we obsented for our determination. The master finds that Metzger was the father of the appellees, and that he owned certain property. These are questions of fact, resting upon testimony, concluded, so far as this court is concerned, by the findings, and into which it
And now the foregoing statement and finding as to the facts proven and estab-is not our privilege to enter. lished by the evidence in each of said causes are ordered to be incorporated in the record of said supreme court as part thereof as fully as we may be thereunto empowered, the July term of the supreme court having been adjourned on the 26th day of September, A. D. 1896, and this order made and signed by each of the judges while in his district respectively. Thomas Smith, Chief Justice. Needham C. Collier, Associate Justice, Supreme Court of New Mexico. Signed at Silver City, in the third judicial district.
Gideon D. Bantz, Associate Justice of the Supreme Court of New Mexico and Presiding Judge of the Third Judicial District Court.
Signed at Santa Fé, N. M., in the first judicial district.
N. B. Laughlin, Associate Justice of the Supreme Court and Judge of the First Judicial District.
It appears from the bill, answer, and findings that Frederick Metzger, though an unmarried man, was the father of several children by different women, and this suit is one between the several illegitimate children to determine their respective rights to share in his estate. The counsel for appellants says in his brief: "The bill of complaint and the testimony present for determination of the court two questions: First, What estate *and property did Metzger own at the time of his death? and, second, Who is entitled to that estate?"
Mr. Harvey Spalding for appellants.
 *Mr. Justice Brewer delivered the opin-
No question is made in this record as to the admission or exclusion of testimony. There being no jury the case comes here on appeal, and the only question we can consider is whether the findings of fact sustain the decree. 18 U. S. Stat. 27; Stringfellow v. Cain, 99 U. S. 610 [25:421]; Cannon v. Pratt, 99 U. S. 619 [25:446]; Neslin v. Wells, 104 U. S. 428 [26:802]; Hecht v. Boughton, 105 U. S. 235, 236 [26:1018]; Gray v. Howe, 108 U. S. 12 [27:634]; Eilers v. Boatman, 111 U. S. 356 [28:454]; Zeckendorf v. Johnson, 123 U. S. 617 [31:277]; Sturr v. Beck, 133 U. S. 541 [33:761]; Mammoth Min. Co. v. Salt Lake
While under the common law illegitimate children did not inherit from their father, the statutes of New Mexico introduced a new rule of inheritance (Comp. Laws New Mexico, 1884, § 1435, p. 680): "Natural children, in the absence of legitimate, are heirs to their father's estate, in preference to the ascendants, and are direct heirs to the mother if she die intestate." In other words, under this statute, there being no legiti- mate children, illegitimate children inherit.
It appears that on March 19, 1875, and while Metzger was living, the mother of these plaintiffs, then minors, in her own right and for the minors, receipted and relinquished all claims against him. Without stopping to consider what was meant by that release, and giving to it all the scope which its language may suggest, we remark that a natural guardian has no power to release the claim of a ward to an inheritance without the sanction of some tribunal. Woerner's American Law of Guardianship, p. 185, and following. The decree is affirmed.
LEWIS PIERCE et al., Plffs. in Err.,
(See S. C. Reporter's ed. 641-650.)
Federal question-when state judgment will not be reviewed-Federal right may be waived question of waiver is not Federal question.
The question whether a state statute Impairs the obligation of a contract is a Federal question; but the question whether the defense of estoppel by laches and acquiescence is established is not a Federal question.
A judgment of the state court, based on two distinct grounds, each of which is sufficient to sustain the judgment, and one of which involves no Federal question, cannot be reviewed on writ of error by this court.
A person may, by his acts or omission to act, waive a right which he might otherwise have under the Constitution of the United States.
Whether or not a person has lost a right under the Federal Constitution by his action or failure to act is not a Federal question which will sustain a writ of error to a state court.