Sattig v. Small

| Kan. | Jul 15, 1862

By the Court,

Ewing, 0. J.

The transcript certifies the proceedings in this case to have been had in “the district court for Leavenworth county, sitting for the trial of causes arising under the constitution and laws of the United States.”

Counsel for plaintiff in error insist that the district court-should have sustained the demurrer to the petition, because the court had no jurisdiction of the case.

First. Because the petition does not -bring ths case within the jurisdiction “vested in circuit and district courts of the United States, in cases arising under the constitution and laws of the United States.”

Second. Because that is the only jurisdiction conferred on the district courts in Kansas by laws of the United States.

Third. Because the laws of Kansas, when this suit was brought and judgment rendered, conferred no jurisdiction whatever on the district court.

Fourth. If any district court in Leavenworth county had cognizance of the cause, it was “the district court sitting for the trial of causes arising under the laws of Kansas,” and not “the district court for the trial of causes arising under the constitution and laws of the United States.”

The statement in the first proposition is correct, but not of itself sufficient; the statement in the second, we need not consider.

It cannot be denied that the organic act, which created the district courts, authorized them to have and exercise such jurisdiction as might be conferred upon them by the laws of the territory.

It matters not in this case, whether by fore e of statutes of any of the territories of which Kansas, at different times, was part. The common law was in force here when the organic act passed. By law of 1855 (Statutes, p, 469,) the common law of England and all statutes prior to 4 James I. not local to that kingdom, and of a general nature, except statutes for the punishment of crimes and misdemeanors, were adopted “as the rule of action and decision in- the -territory.'’ This adopted .the common-law as to rights of action and forms of .remedy so far as it was consistent with the constitution and laws of the United States, and the statutes of Kansas. ■ And by law of the same year, (Statutes 1855,^?. 224,) it is provided that xhe district court shall have exclusive jurisdiction in all cases of equity, whatsoever, and in all civil actions or suits within their respective districts, wjiere the amount in controversy shall exceed one hundred dollars, except in such cases where concurrent jurisdiction may be .given to some- other courts, meaning probate courts.. Laws regulating practice at law and in chancery, were passed at the game session which had been repealed and supplied; by the code of 1858 before suit in. this cause was commenced. By that code, it was -provided that suits such as this should be brought in the county in which defendant resided, or might be summoned.

■' The territorial statutes declared a right of action- on the cause shown in this record, prescribed the mode of remedy, ’and gave jurisdiction to the' district court sitting in Leavenworth county, the defendant having been there summoned.

It is clear that the organic act did not contemplate that two district courts of distinct jurisdiction, should be held— one with jurisdiction over cases arising under the constitution and laws of the United States, and the other over causes arising under the laws of the territory. The provision that “the first six days of every term, or so much thereof as may be necessary, shall be appropriated to the trial of causes arising under the said constitution and laws,” evidently contemplated that both those classes of causes would be triable at every term, and in one court.

The sixth section of- the act of congress of August 16th, 1856, provides that the judges of the supreme court of the territory, or a majority of them, shall fix the times and places of holding the district courts, and the duration of the terms, and provides that such courts shall not be held at more than three places in the territory. Leavenworth City, in Leavenworth county, was the place fixed by the judges, under the law, for holding the district court, in the first district.

The second section of the act of congress of 12th of June, 1858, provides: “ The judges of the supreme court of -each territory of the United States are hereby authorized to hold court within their respective districts, in the counties where, by the laws of said territory, courts have been or may be established, for the purpose of hearing and determining all matters and causes, except those in which the United States is a party, provided, that the expense thereof shall be paid by the territory, or by the counties in which said court may bo held, and the United States shall, in no case, be chargeable therewith.”

This act, we think, leaves the district courts, as theretofore existing, in all respects untouched. It'still remained the duty of each judge to hold one court in his district, at such time and place, and for such length of time as the majority of the judges should prescribe, and such courts, so held, retained «di the jurisdiction theretofore conferred on the district courts, as well in cases arising under the laws of Kansas as in those arising under the consitution and laws of the United, States.

The act last quoted, authorizes the judges of each district to hold other courts in any of the counties of his district, at such time and place as the legislature of the territory might prescribe, “ for the purpose of hearing and determining all matters and cases, except those in which the United States is a party.” The legislature prescribed time and place for holding the new court .in Leavenworth county, as in other counties of the first district, and the jurisdiction of. the new court in that county extended to all cases cognizable in the old, except those where the .United States was a party, just as did the jurisdiction of those other counties. The fact that the two courts sat in the same county, one by appointment of the judges, the other by the lawr of the territory, did not affect the jurisdiction either would have had, if the other had been held elsewhere, or not held at all. Their jurisdictions were concurrent, excepting in the one class of cases reserved in the act of congress from the new court.

[¡Note. — The brief of Wheat, attorney for defendants in error, was lost, and his name accidently omitted. — Reporter.]

Either of the district courts in Leavenworth county would have had jurisdiction of the case, under the laws of Kansas, without the allegation in the petition as to citizenship of the parties.

The objections to the petition, on the ground of a want of jurisdiction having been considered, it is only necessary to say that the other objections specified in the demurrer, are not well taken, and that the petition, though very loosely framed, states facts sufficient to constitute a cause of action.

The demurrer, therefore, wras properly overruled.

It is ordered by the court, that the judgment rendered in the district court, in this case, is affirmed. Judgment here against plaintiff in error for costs, and execution" awarded thereon.