Justices' courts in the state of Nebraska are not mere creatures of the Legislature, but they are courts created by the Constitution itself. Section 1 of article of the Constitution of the state of Nebraska provides: "The judicial power of this state shall be vested in a Supreme Court, district courts, county courts, justices of the peace, police magistrates and such other courts inferior to the district courts as may be created by law for cities and incorporated towns." Section 18 of the same article provides for the jurisdiction of justices. Under an identical provision of the Constitution of Georgia it was held by Mr. Justice Wood, then a circuit judge of the United States, in State v. Port (C. C.) 3 Fed. 117, that causes pending before a justice of the peace may be removed to the federal court. This was afterwards approved and followed in State v. Bolton (C. C.) 11 Fed. 217, and State v. Kirkpatrick (C. C.) 42 Fed. 689. It is true these cases were by the Supreme Court overruled in Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, 37 L. Ed. 386; but not on that point. The matter overruled by the Supreme Court was the ruling of the Circuit Courts that a proceeding before a justice of the peace, who was sitting as an examining magistrate investigating a charge which could only be tried in a higher court and after an indictment, was a criminal prosecution within the meaning of section 643, Rev. St., and therefore removable. This was held by the Supreme Court to be erroneous; that court holding that such a proceeding was not a criminal prosecution within the meaning of that statute. In Wood v. Matthews, 2 Blatchf. 370, Fed. Cas. No. 17,955, it was expressly held that a cause may be removed from a justice of the peace. Under the laws of Nebraska actions of forcible entry and unlawful detainer can only be maintained in a justice court, and, if such an action cannot be removed to a federal court when the matter in controversy exceeds in value $2,000, then the defendant would be denied a privilege guarantied to him by the Constitution and laws of the United States. In answer to this, it is contended that, as an appeal to the district court would lie from the decision of the justice of the peace, the cause could be removed from the district court. But this is not true. A cause can only be removed from the court of original jurisdiction, and not from the appellate tribunal. Stevenson v. Williams, 19 Wall. 572, 22 L. Ed. 162; Lowe v. Williams, 94 U. S. 652, 24 L. Ed. 216; Craigie v. McArthur, 4 Dill. 474, Fed. Cas. No. 3,341; McCallon v. Waterman, 1 Flip. 651, Fed. Cas. No. 8,675. In Craigie v. McArthur it was sought to remove a cause from the district court, originally instituted in the probate court and appealed from that court, but it was held that, although upon appeal to the district court the cause would be tried de novo in the latter court, it was too late to remove it from the appellate court, but that the removal should have been from the probate court. In Stevenson v. Williams, Mr. Justice Field, in delivering the opinion of the court, said: "The act of Congress under which the removal was asked only authorizes a removal where the application is made before the final hearing or trial of the suit, and this clearly means before final judgment in the court of original jurisdiction where the suit is brought." As this is a civil action pending in a state court, the value of the matter in controversy exceeding $2,000, and the plaintiff being a citizen of the state of Nebraska, and the defendant a foreign corporation, the right of removal existed, and the motion to remand must be overruled. BOSTON & M. R. CO. v. GOKEY. (District Court, D. Vermont. January 30, 1907.) APPEAL-EXECUTION-STAY-PENDENCY OF PROCEEDINGS FOR REVIEW. Where a judgment of a District Court has been affirmed by the Circuit Court of Appeals and a mandate sent down, but the defeated party has promptly applied for a writ of certiorari from the Supreme Court to review the decision of the Circuit Court of Appeals, execution on the judgment will be stayed by the District Court to await the termination of such application. On Petition for Stay of Execution. Young & Young, for petitioner. MARTIN, District Judge. The petition in this case alleges, in substance, that the petitionee pretended to bring a suit against the petitioner, but did not make valid service, in that there was not 21 days given it to answer before the term of court to which it was called upon to answer, and that there were other defects in the service of the original process; that it appeared for the sole purpose of moving to dismiss, and to plead an abatement; that the court overruled the motion to dismiss and, upon demurrer by the petitioner to the petitionee's reply to the plea in abatement, held the abatement bad, to both of which rulings the petitioner excepted, and later plead the general issue; that the case was tried, verdict and judgment for the petitionee; that several questions arose in the trial of the case and exceptions were taken by the petitioner, and the exceptions to the Circuit Court of Appeals set forth the claimed errors on trial, and the claimed errors of the court relating to said motion to dismiss and plea in abatement; that the Circuit Court of Appeals, by a majority of the court, held as a matter of law that they could not consider the claimed errors of the court arising upon said motion to dismiss and plea in abatement, because those challenged the jurisdiction of the court; and that a jurisdictional question could only be settled by the Supreme Court. This ruling of the Circuit Court of Appeals the petitioner, by certiorari, craves the Supreme Court to review and reverse. The record shows that the petitioner filed a bond approved by the court and obtained writ of error in ample time to stay proceedings in this court pending the appeal in the Circuit Court of Appeals, and that this court granted supersedeas accordingly; that said Court of Ap peals sent down its mandate in December, affirming the judgment of this court, whereupon the petitioner promptly instituted said proceedings by certiorari to the Supreme Court, which proceeding is based upon the subject-matter of the original appeal taken from this court. Any costs and damages that the petitionee may suffer thereby will be recoverable under said bond. Execution should not issue while the case is pending on certiorari to the Supreme Court. If a hearing in that court is denied, then, unless payment is promptly made, execution will issue. If, on the contrary, it is granted, that court will stay execution unless this court has already done so. Hardeman et al. v. Anderson, 4 How. 640, 11 L. Ed. 1138; Board of Commissioners v. Gorman, 19 Wall. 661, 22 L. Ed. 226; In re Haberman Mfg. Co., 147 U. S. 525, 13 Sup. Ct. 527, 37 L. Ed. 266; Ex parte Milwaukee R. R. Co., 5 Wall. 188, 18 L. Ed. 676; Louisville & Nashville R. R. Co. v. Behlmer, 169 U. S. 644, 18 Sup. Ct. 502, 42 L. Ed. 889. The act creating the Circuit Court of Appeals provides that a review of cases decided by said Court of Appeals may be had by the Supreme Court for manifest error, and other grounds, by writ of certiorari. It is under this provision that the petitioner is now proceeding, and evidently in good faith. Under this state of facts I am of the opinion that the original order of supersedeas is still in force; but, that no complications may arise, I hereby direct that execution be stayed until further order of the court. BENOIT v. UNITED STATES. (Circuit Court, S. D. New York. April 21, 1892.) No. 665. 1. CUSTOMS DUTIES-CLASSIFICATION-COTTON-WOOL CLOTH. Goods composed in part of wool, but in chief value of cotton, are more specifically enumerated in Tariff Act Oct. 1. 1890, c. 1244, § 1, Schedule I, par. 355, 26 Stat. 593, as "manufactures of cotton" than in the provision in Schedule K, par. 392, 26 Stat. 596, for "manufactures of every description in part of wool." 2. SAME PROVISIONS EQUALLY APPLICABLE. A provision for "all manufactures of cotton" and one for "all manufactures of every description in part of wool" are not equally applicable to cloth composed in part of wool but in chief value of cotton; the latter being less specific than the former. Therefore they are not controlled by the provision in Tariff Act Oct. 1, 1890, c. 1244, § 5, 26 Stat. 613, that, "if two or more rates of duty shall be applicable to any imported article, it shall pay duty at the highest of such rates.” 3. SAME "MANUFACTURES OF COTTON." The provision for "manufactures of cotton," in Tariff Act Oct. 1, 1890, c. 1244, § 1, Schedule I, par. 355, 30 Stat. 593, held to include materials composed in chief value of cotton and in part of another substance. On Application for Review of a Decision of the Board of United States General Appraisers. In the decision below, which is reported as G. A. 1064 (T. D. 12,250), the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by A. V. Benoit. This merchandise consisted of cloth having a cotton warp and a wool weft. It was classified as dutiable under the provision in Tariff Act Oct. 1, 1890, c. 1244, § 1, Schedule K, par. 392, 26 Stat. 596, for "all manufactures of every description made wholly or in part of wool, * ** not specially provided for," and was claimed by the importer to be dutiable under Schedule I, par. 355, 26 Stat. 593, relating to "all manufactures of cotton not specially provided for." The Board found that "it is a manufacture of which cotton is the component material of chief value," but held that, as paragraph 355 does not contain a provision for manufactures in chief value of cotton, "the provision of paragraph 392 is equally as specific, and controls the classification of the goods, by reason of its imposing the higher rate of duty applicable," under section of said act (26 Stat. 613), which provided: "If two - or more rates of duty shall be applicable to any imported article, it shall pay duty at the highest of such rates." Curie, Smith & Mackie (W. Wickham Smith, of counsel), for importer. James T. Van Rennsselaer, Asst. U. S. Atty. LACOMBE, Circuit Judge (after stating the facts). The circumstance that the principal testimony of the witness called by the government is based, not upon the sample upon which the Board of Appraisers had based their decision, but upon another sample, seems to me insufficient to warrant me in setting aside their finding of fact. But taking the fact to be as they have found it, I think I must reverse their decision, in view of the different doctrine as to the law which has been laid down by the Supreme Court. The decision is therefore reversed, and the collector is directed to classify the goods under section 355. CITY OF DEFIANCE v. McGONIGALE.* (Circuit Court of Appeals, Sixth Circuit. February 2, 1907.) No. 1,580. 1. APPEAL AND ERROR-REVIEW-EFFECT OF REQUESTS BY BOTH PARTIES FOR DIRECTION OF VERDICT. Where both parties in an action at law request an instruction directing a verdict, the finding of the court upon the facts is conclusive, and the only question for review by an appellate court is the correctness of the court's finding on the law. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 4024.] 2. COURTS-UNITED STATES COURTS-EFFECT OF STATE STATUTE-RECEIVERS APPOINTMENT. A state statute prohibiting the appointment of nonresidents of the state as receivers applies only to its own courts, and cannot control the action of a federal court. [Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 902.] 3. MUNICIPAL CORPORATIONS-VALIDITY OF CONTRACT WITH WATER COMPANY-OHIO STATUTE. Act Ohio May 12, 1886 (83 Ohio Laws, p. 146), authorizing cities of the fourth grade of the second class to contract with the owners of waterworks for water supply for fire purposes, etc., superseded all prior legislation as to cities of that class, and rendered inapplicable thereto the provision of Act Jan. 29, 1885 (82 Ohio Laws, p. 11), requiring such contracts by municipal corporations generally to be submitted to the qualified voters for ratification. [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 739.] 4. COURTS-FEDERAL COURTS-FOLLOWING STATE DECISIONS. A decision by the Supreme Court of Ohio in a suit brought under Rev. St. Ohio, § 1777, by a city solicitor, to enjoin the further performance of a contract made by the city with a water company and the payment of any money thereunder on the ground of its invalidity, in which the court denied the relief prayed for on the ground that the suit was barred by limitation, and expressed the opinion that the city, by reason of its accepting performance and itself performing the contract for a number of years, was without equity to question its validity, even though not technically operating to render the question of the validity of the contract res judicata, will be given such effect by analogy, and followed by a federal court in a subsequent action at law by the water company against the city to recover rentals under the contract, in which its invalidity is set up as a defense. [Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, §§ 962, 963.] Lurton, Circuit Judge, dissenting. In Error to the Circuit Court of the United States for the Northern District of Ohio. For opinion below, see 140 Fed. 621. John H. Doyle and Henry B. Harris, for plaintiff in error. Henry & Robert Newbegin, for defendant in error. Before LURTON, Circuit Judge, and SWAN and EVANS, District Judges. *Rehearing denied March 2, 1907. 150 F.-44 |