Walker v. Richards

55 F. 129, 1893 U.S. App. LEXIS 2535

• Court: U.S. Circuit Court for the District of Minnesota
• Decided: April 13, 1893
• Status: Published

Opinion

AEíjBOH, District Judge,

(after stating the facts.) The first reason assigned is not tenable. The defendants in court by name, served with process, were not required to delay the application for a removal of the suit until persons unknown, who might claim some right, title, estate, or interest in the controversy, were served. Such delay would have proven fatal to the right given them by the statute. The right of removal is given to known defendants,— such as are made defendants by name, and served with process, or voluntarily appear. The two petitioners are all the known defendants to the controversy at the time the petition for removal of the suit was filed. A party defendant to an action, within the meaning of the removal act, is one who is named as such, and appears in the record as a defendant at the time the right of a removal exists.

Again, when it is sought to remove a suit on the ground that it is one arising under the laws of the United States, it must appear from the petition for removal and pleadings that there is a question actually involved in the suit depending for its determination upon a correct construction of a law of the United States, and the facts averred in the pleadings or in the said petition must show what the question is, and how it will arise. The allegations in the petition are that the lands mentioned in the complaint and claimed to be owned by the plaintiffs were entered by parties under and pursuant to title 32, c. 5, Rev. St. U. S., and for a soldier’s additional homestead; that prior to these entries each of the parties, and his wife joining, executed and delivered an instrument in writing, which was made, executed, delivered, and received by the respective parties thereto for the sole purpose and with the intent of selling, assigning, and transferring the right' of the party executing the same to an additional homestead conferred upon him by and under the laws of the United States, and particularly under title 32, c. 5, aforesaid, prior to doing or performing any of the acts or things required to be done and performed under said law, and for the purpose of alienating the several tracts of land described, contrary to and in violation of the laws of the United States; that the instruments were, and each of them was, intended, and each on its face purports, to alienate the right of the party executing the same under the laws of the United States aforesaid, and that said instruments are void under the United States laws; that the lands are a part of the public lands of the United States, and subject to entry under the laws aforesaid, and that plaintiffs’ title is wholly derived through said instruments, and the defendants’ title is derived directly from the original entry,men, by deed duly executed; that each of said entry men received a patent from the United States for the lands entered by him. Upon the facts thus set forth it is claimed that if the instruments alleged to be given for the sole purpose of selling and transferring the right of the parties thereto to lands under title 32, c. 5, are valid, the plaintiffs are entitled to a decree quieting their title. On the other hand, if they were made in violation of the United States laws, and are void, they cannot avail as against the defendants’ title, derived from the original entry men. The decision of this question depends on the construction of title 32, c. 5, Rev. St. U. S., and is a federal quesiloxi. The second and third grounds urged against the motion to remand are not tenable, In my opinion, and must be overruled, it is so ordered.

NOTE. Plaintiffs’ motion to remand in the ease of the Red River Lumber Company against Benjamin 15. Kichaids et al. is also overruled.