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Opinion of the Court.

no boundaries of defendants' respective claims to be ascertained, no multiplicity of suits to be avoided, as in the case at bar. Read in connection with the cases herein before cited, the case of Hipp v. Bubin but strengthens the appeal to the equity jurisdiction over the case at bar.

Mr. Henry C. Miller for the New Orleans Canal and Banking Company, appellee. Mr. J. L. Bradford for the same.

Mr. Gus. A. Breaux for the Metarie Cemetery Association, appellee.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

Notwithstanding the statement of the bill respecting the alleged illegal and fraudulent use of the ancient grants produced, and the alleged illegal proceedings of the department, the bill avers the possession by the complainant of a legal title to the premises. Whether that title can be enforced against other claimants will depend of course upon the validity of the ancient grants produced, and of the proceedings by which Louisiana is alleged to have acquired the property. That can be shown in an action at law as well as in a suit in equity.

If the State acquired a good title by the swamp land act of 1849, and the listing of the lands and patents to her, and she sold the premises, as alleged, to the complainant, he can recover them in an action at law, and the rents and profits accrued thereon since the defendants have been in possession, and for that purpose there is no occasion for any proceeding in equity. The 16th section of the Judiciary Act of 1789, which is carried into the Revised Statutes as sec. 723, declares that suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may be had at law. The allegations as to the illegality of the action of the Land Department, and the fraudulent proceedings of the defendants in bringing forward the pretended ancient grants, are entirely unnecessary to the


maintenance of the action. The facts upon which a title to the premises in controversy rests, or by which such title can be defeated, can be readily shown in an action at law. No discovery is necessary for the intervention of any equitable jurisdiction, nor would there be any avoiding of a multiplicity of suits by maintaining this proceeding in a court of equity. In a single action at law all the facts can be established and all the questions necessary to determine the right to the property can be considered and disposed of. The allegation of fraudulent proceedings respecting the acquisition of the title does not convert an action at law into a suit in equity. The title stated is merely legal, and as was said in the case of Hipp v. Babin, 19 How. 271, 277, where an ejectment suit in equity was sought to be sustained: “ The evidence to support it appears from documents accessible to either party; and no particular circumstances are stated, showing the necessity of the courts interfering, either for preventing suits or other vexation, or for preventing an injustice, irremediable at law.” See also Scott v. Neely, 140 U. S. 106, 110.

The demurrer to the bill' was, therefore, properly sustained and the suit dismissed on the ground that the complainant had an adequate remedy at law, such dismissal being without prejudice to any subsequent action at law which the complainant might be advised to bring.

Decree affirmed. MR. JUSTICE BLATCHFORD took no part in the decision of this




No. 1158. Submitted October 13, 1891. - Decided December 7, 1891.

Under section 5 of the Act of March 3, 1891, c. 517, 26 Stat. 826, “ to estab

lish Circuit Courts of Appeal,” etc., the appeal or writ of error which may be taken“ from the existing Circuit Courts direct to the Supreme Court,” “in any case in which the jurisdiction of the court is in issue,” can be

Opinion of the Court.

taken only after final judgment; when the party against whom it is rendered must elect whether he will take his writ of error or appeal to this court upon the question of jurisdiction alone, or to the Circuit Court of Appeals upon the whole case.

The case is stated in the opinion.

Mr. W. 0. Davis and Mr. W. Hallett Phillips for plaintiff in error.

Mr. W. 0. Ledbetter for defendants in error.

MR. JUSTICE Lamar delivered the opinion of the court.

This was a suit brought in the United States Court for the Indian Territory, Third Judicial Division, by A. B. Roff and W. R. Watkins against Richard McLish, for the recovery of about 640 acres of land situated in the Chickasaw Nation, and belonging to said tribe. In their amended complaint, they alleged that the defendant, Richard McLish, is a member of the tribe of Chickasaw Indians by blood ; that both plaintiffs, Roff and Watkins, were born in the United States, and are now, and always have been, citizens of the United States, neither of them ever having renounced their allegiance to the government of the United States, nor taken the oath of allegiance to the government known as the Chickasa w government. The complaint further alleged that both plaintiffs, Roff and Watkins, are members and citizens of the Chickasaw tribe of Indians by intermarriage, and not by nativity or adoption; that, on the 15th day of November, 1865, the plaintiff Watkins, by intermarriage with Elizabeth Tyson, a member of said tribe by blood, became himself a member of said tribe, and that the plaintiff Roff also became a member of the same tribe by intermarriage with Matilda Bourland, the daughter of an adopted member of the tribe, during the year 1967; that, as such citizens of the Chickasaw nation, the plaintiffs had the right to own and did own, on or about the 1st of Sep tember, 1888, as tenants in common, the tract of land described in the complaint, and were in the actual possession thereof, but that on that day the defendant MeLishe entered upon the

Opinion of the Court.

said premises and unlawfully ousted the plaintiffs therefrom; and that he unlawfully withholds the same, and has continuously done so up to the time of bringing this suit, to the damage of the plaintiffs, $10,000. They pray for the recovery of the said premises, with the rents, damages and costs; or, if the court holds that they are not entitled to the recovery of the land, that they recover the value of the improvements put thereon,ówhich improvements are set forth in some detail in the complaint, amounting in value, in the aggregate, to $2875.00 by Roff, and to $2200.00 by Watkins.

At October term, 1890, the defendant filed his demurrer to the jurisdiction of the court on these grounds:

(1) It appears from plaintiffs' amended complaint that the parties plaintiff and defendant are citizens of the Chickasaw nation or tribe of Indians, and that the court is without jurisdiction over the parties to this suit, and of this the defendant prays the judgment of the court whether he ought to answer said complaint.

(2) It appears from the amended complaint that plaintiffs acquired their pretended rights as citizens of the Chickasaw nation, and that they claim such rights, because of their said citizenship; and that this is a controversy between citizens of the Chickasaw tribe of Indians, of which the courts of said tribe have exclusive jurisdiction, and of this the defendant prays a judgment of the court that this suit be dismissed.

The demurrer was overruled by the court upon the ground that it had jurisdiction to hear and determine the cause, to which the defendant excepted. The defendant thereupon insisted that the jurisdiction of the court over the suit was at issue, and desiring to remove the cause by writ of error to the Supreme Court of the United States for its decision upon the question of jurisdiction involved, requested the court below to certify the question of jurisdiction involved to that court for review, offering to file a petition for a writ of error, with good and approved security, and asked that the court proceed no further with the cause until the jurisdiction should be decided by the Supreme Court of the United States. The court denied said request and held that it was its duty to proceed with the

Opinion of the Court.,

trial of the case, notwithstanding the question of jurisdiction, and that the defendant could only appeal upon that question (of jurisdiction) to the Supreme Court of the United States from the final judgment of the court below; and required the defendant to proceed with the trial of the cause upon the merits: to all of which the defendant excepted, tendering his bill of exceptions, and asking that the same be allowed and certified, which was done by the judge of said court. He then sued out writ of error from this court.

The writ of error is taken under the act of March 3, 1891, 26 Stat. 826, c. 517, which, as we have decided in In re Claasen, 140 U. S. 200, went immediately into effect on its enactment. The 13th section of that act placed the United States court in the Indian Territory on the same footing with regard to writs of error and appeals to this court as that occupied by the Circuit and District Courts of the United States.

Sec. 5 of the same act provides :

“That appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision."

Does this provision authorize an appeal or writ of error to be taken to this court for review of a question involving the jurisdiction of the court below, whenever it arises in the prog. ress of a case pending therein; and does the taking of such appeal or writ of error operate to stay the further proceedings in the cause until the determination by this court of the jurisdictional question? Or, in other words, has this court jurisdiction to review the question before any final judgment in the cause?

The plaintiff in error contends that we have the jurisdiction to review such question, because (1) there is in the section above quoted no express requirement of finality of judgment; and (2) because there is a positive requirement that the question of jurisdiction shall alone be certified to the Supreme Court from the court below for decision.

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