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United States have no original jurisdiction of the probate of wills, they, nevertheless, have jurisdiction of a contest to determine whether or not a will should be admitted to probate. That would be to assume jurisdiction over the whole subject of probating wills.
The case of Reed v. Reed, 31 Fed. 49, contains a well-considered opinion, holding that the courts of the United States have no jurisdiction to try a controversy to contest the validity of a will by an original bill brought for that purpose. In the course of the opinion it is said:
“This question of jurisdiction is not a new one in this court. At the April term, 1878, this court had the same question before it in the case of Howe v. Nesbit (not reported); and the court then decided, after full argument (Judges Baxter and Welker sitting together), that the court had no jurisdiction to try a controversy brought under the Ohio statute to contest the validity of a will, by an original bill filed for that purpose, and sustained a demurrer to such bill for want of such jurisdiction, and dismissed the case for that ground of demurrer. In that case the will had been probated in the probate court of Lorain county, and the petition was filed as the one in this case was filed, making the heirs at law of the testatrix defendants, and asking that the cause be submitted to a jury to determine whether the said instrument was the valid last will and testament of said Catherine Nesbit, and that the same might be declared null and void. I see now, after a careful examination of the authorities cited by counsel in this case, no reason to change that ruling."
The case of In re Cilley, 58 Fed. 977, contains an elaborate discussion of the question by Judge Aldrich, whose opinion is concurred in by Judge Colt. In that case it was held that the right of removal is restricted by section 2 of the Acts of 1887-88 to the classes of cases in which original jurisdiction is given by section 1; that the right of removal on the ground of diverse citizenship is limited to suits of a civil nature at common law or in equity; and that a proceeding to establish and probate a will is not a suit at common law or in equity, and therefore is not removable under the Acts of 1887-88.
In the case of Oakley v. Taylor, 64 Fed. 245, it is held that the courts of the United States have no jurisdiction of an original suit brought in such courts to contest the validity of a will, and to procure a decree for its cancellation.
If this court should assume jurisdiction of the contest, the power conferred upon it is not adequate to carry its judgment into execution. It has no power to cause a will, if found to be a valid testament, to be entered on the records of the state court having probate jurisdiction. The will must still be proved and recorded in the state court to make it effective. The records of the court having probate jurisdiction ought, in conformity with the requirements of the statutes of this state, to exhibit the will and its probate; and it would prove highly inconvenient if the records of this court should have to be examined to determine whether or not a will was valid and entitled to probate. Besides, the state court has refused to surrender jurisdiction of this contest; and should this court assume jurisdiction, and enter a judgment either in favor of or against the validity of the will, and recognition of its judgment was refused by the court of the state, an unseemly contest would arise. If this court should establish the validity of the will, and the state court should refuse to recognize such judgment, could this court seize upon and administer the testator's estate? It clearly possesses no such power. I entertain no doubt that this court has no jurisdiction of a suit, either brought here originally or by removal, for contesting the validity of a will; but, if I entertained doubts, it would be my duty to resolve them in favor of the jurisdiction of the state court, and against the right of removal here.
The motion to remand is therefore sustained, at the cost of the petitioner for removal.
HUNTINGTON V. SAUNDERS.
The circuit court of appeals has no jurisdiction to review the decisions of
Before COLT, Circuit Judge, and WEBB and CARPENTER, District Judges.
CARPENTER, District Judge. This is an appeal from a decree of the circuit court for the district of Massachusetts (64 Fed. 476) dismissing a petition for review of the proceedings of the district court in a matter arising under the bankruptcy law of 1867. Rev. St. tit. 61. We are of opinion that this court has no jurisdiction of the appeal. The act by which this court is established gives general jurisdiction to review final decisions of the circuit courts "unless otherwise provided by law.” 26 Stat. 828, c. 517, § 6. In the act repealing the bankruptcy law it is provided that the law shall continue in force until all proceedings thereunder "shall be fully disposed of, in the same manner as if said act had not been repealed." 20 Stat. 99, c. 160. Under the provisions of the act thus continued in force, there was no appeal from the decree of the circuit court under the supervisory power vested in that court. Wiswall v. Campbell, 93 U. S. 347. This case therefore falls within the exception in the clause giving jurisdiction to this court, and it follows that the appeal must be dismissed.
BIDWELL et al. v. TOLEDO CONSOL. ST. RY. CO.
(Circuit Court, N. D. Ohio, W. D. February 20, 1896.) PARTIES, NONRESIDENT CORPORATION – VOLUNTARY APPEARANCE-What CON. STITUTES.
A nonresident corporation which cannot be served, and which does not intend to become a party, is not to be considered as making a voluntary appearance, so as to justify the court in making it a party to the record, merely because it assumes the defense of the suit for the actual defendant, pursuant to previous contract, and conducts the same
by its own attorneys, and in part by witnesses who are under salary from it at the time of testifying. Manufacturing Co. v. Miller, 41 Fed. 851, distinguished.
This was a bill by Benson Bidwell and others against the Toledo Consolidated Street-Railway Company for alleged infringement of a patent. The cause was heard upon an application by complainants for leave to amend their bill by making the General Electrio Company a party defendant.
Frank H. Hurd and Orville S. Brumback, for complainants.
Frederick A. Betts, J. E. Hinton Hyde, and Smith & Baker, for defendant.
RICKS, District Judge. The complainants have made application to this court for leave to amend their bill by making the General Electric Company, a nonresident "orporation, a party defend. ant to this suit. It is not claimed that said proposed defendant is within the jurisdiction of the court, and amenable to its process, or that it can be brought in by original subpæna. It is sought to hold it as a defendant in this case because it is alleged the counsel who are preparing and conducting the defense for the Toledo Con. solidated Street-Railway Company are the general counsel for said proposed defendant. It is further contended that because said counsel have so assumed the defense of this case; have furnished witnesses in the employ of the General Electric Company to testify on behalf of the defendant; that such witnesses, while so testify, ing, have been under salary from the General Electric Company; and that the latter has in fact agreed to protect the said the Toledo Consolidated Street-Railway Company in the use of the appliances which it is claimed are an infringement of complainants' patent, and that it will conduct any defense which the said railway company may be called upon to make in court by reason of the use of such appliances,-that by such conduct it has, in legal effect, entered its appearance in the suit.
The court passed upon an application of a somewhat similar character, made in this case, some time ago. From a statement of the facts as above made, it will be observed that the court is now asked to declare that the General Electric Company, by assuming the defense of this suit, as alleged, on behalf of the Toledo Consolidated Street-Railway Company, has in fact entered its general ap- ' pearance, and made itself a defendant in this case, and is to be bound by the decree, if one should be made in favor of the complainants and against the defendant. It is not claimed that there was any intention on the part of the General Electric Company to become a party to this case, or that there is any such desire on its part. It is sought to make the decree in this case binding upon that corporation because of the acts before stated.
Is it possible for a court to make any orders in this case, under these facts, which would make said corporation a party defendant in this suit against its wish? Counsel insist that the court has authority to make such an order, and that it should be made to
promote justice. It is urgently contended that the plaintiff is now in fact prosecuting this case against both the Toledo Consolidated Street-Railway Company and the General Electric Company; that the latter is giving to its vendee and the user of its electrical appliances the benefit of its great corporate wealth and influence, and the benefit of the experience and ability of its counsel; and that if, as the result of such a contest, the complainants should prevail, they should have the benefit of their victory by securing a decree which would be binding and conclusive upon the General Electric Company in any subsequent litigation that may occur between the parties.
In support of this contention, counsel cite the case of Manufacturing Co. v. Miller, 41 Fed. 351. That was a case in which the complainant filed a bill against the defendants to maintain the validity of the letters patent which it was claimed the defendants had infringed by the use of certain agricultural implements. The defendants were agents for the manufacturing concern of Mast & Co., a corporation created under the laws of the state of Ohio, which made and sold the infringing machines. Mast & Co., as its interests required, conducted the defense for its agents; and, when the decree was entered in the case in favor of the complainants, the court said:
“It is made clear that Mast & Co. is the principal party in interest, being the manufacturer of the machine sold by the defendants Miller, and bound by contract with them to protect them against any consequences of infringement. It has had notice of the pendency of this suit, and, in fact, has assumed the control and management of the defense; and therefore, under the doctrine of the cases just cited [Lovejoy v. Murray, 3 Wall. 1; Robbins v. Chicago, 4 Wall. 657), the decree herein will, in fact, be binding upon the corporation. No good reason is perceived why, by apt statement in the decree, it may not be made to appear upon the face of the decree that in fact the Mast & Co. Company is bound by the results reached in the progress of the litigation in which it has been actively engaged; for that, in effect, is only stating in set phrase the force which the decree would in fact have as against the corporation."
In that case the defendants had filed an amendment to the original bill making the Mast & Co. Company a party defendant, but no subpæna was issued or served upon the corporation, and the company never answered the bill, nor in its own name did it enter its appearance in the case. But the case cited comes very far from sustaining the contention now made by the complainant in this case. It will be observed that, in the case cited, Mast & Co. was not in fact made defendant. The decree upon its face did not profess to run against Mast & Co., or to be binding in its terms upon it. All that Judge Shiras intended to accomplish by that decree was to so state the facts as to make it an estoppel against Mast & Co. in any subsequent litigation in which the same subject-matter might be involved. That was as far as that decree was intended to go, because the cases cited only supported him to that extent.
In the case of Lovejoy v. Murray, 3 Wall. 1, the court decided that, when a plaintiff in an attachment suit gives a bond of indemnity to an officer to protect him for acts done in executing the writ
of attachment, such plaintiff becomes a joint trespasser with the officer, and that when thereafter the attaching officer is sued, and when the party who has indemnified the officer takes upon himself the defense of the suit, such party is concluded by the judgment against the officer when such indemnifying party is afterwards sued for the same trespass. In other words, the supreme court held in that case that the party who indemnified the attaching officer be. came so related by his own act with the defense of the suit brought against the attaching officer that, in subsequent litigation, he was estopped from claiming that he had no connection with such suit, and that he was in fact concluded by the judgment against the officer.
In the other case cited by Judge Shiras, to wit, Robbins v. City of Chicago, 4 Wall. 657, the court applied the same doctrine that was declared to be the law in the case of Lovejoy v. Murray. Robbins was the owner of a lot in the city of Chicago, upon which he had wrongfully “dug, opened, and made" an area in the sidewalk adjoining, and left it so unguarded that one Woodbury fell into it, and was severely injured. Woodbury instituted suit against the city, and recovered for his injuries $15,000 damages, which sum the city paid. Thereafter the city sued Robbins, the owner of the lot, to reimburse it for the amount of damages so paid by it. In this latter suit it appeared that Robbins had had notice from the city solicitor of Chicago of the pendency of the Woodbury suit, of the court in which it was instituted, and when it was to be tried, and that he had assisted in securing evidence in behalf of the defense. When sued by the city, Robbins was held to be bound by the recovery granted in the former suit of Woodbury against the city, and to be concluded thereby, although not a formal party of record in that case.
These are the cases relied upon by Judge Shiras to support his decree in the case cited by complainants' counsel. They could not have been cited as authority to support the construction which counsel in this case now seek to put upon the decision made by Judge Shiras in the case to which reference has been made. As before stated, Mast & Co. were not made parties to the suit before Judge Shiras, and the decree did not undertake to bind them as a party defendant, but simply undertook to show such a state of facts as would tend to estop them in subsequent litigation from again controverting the issues made in the suit of which they had notice, and in which they were interested, and in which they participated in the manner stated.
It may be that, on the final hearing of this case, the evidence may disclose such conduct on the part of the General Electric Company-such a participation in the actual defense of this caseas will justify the court in making a statement of such facts on the face of the decree, to the end that, in subsequent litigation involving the same issues or the same interests, the complainants may have a right to contend that the General Electric Company is estopped from further defending against the same. That is as far