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CARR v. FIFE.

decided: March 4, 1895.

CARR
v.
FIFE.



APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WASHINGTON.

Author: Shiras

[ 156 U.S. Page 496]

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

The ninth specification of error complains of the refusal of the court below to remand the cause to the Superior Court of Pierce County upon the showing that, after the admission of the State of Washington, it had been stipulated by the counsel of the respective parties that said cause might be tried in said Superior Court. But the record shows that the reasons assigned in the court below for the motion to remand did not

[ 156 U.S. Page 497]

     mention such a stipulation, and it is out of time and place to urge it in this court.

The tenth assignment asserts want of jurisdiction in the Circuit Court, at the time of entering the final decree, because the record did not contain a specific allegation that the matter in dispute exceeded the sum of two thousand dollars. If the record were defective in the particular mentioned, we think that the amendment by affidavits, disclosing that the value of the matter in dispute largely exceeded the jurisdictional amount, cured the defect. The procedure would have been more formal if the decree had been set aside, and renewed after the amendment had been made; but the term at which the decree was entered had not ended, so that the court still had power to permit an amendment of the record, and we do not feel compelled to reverse the decree because of the manner in which the court below exercised its power of amendment. Besides, it is not clear that the record was defective in the respect claimed. The suit was not one to recover a sum of money, but to decide a question of title to a considerable tract of land, and the plaintiff put in evidence in support of his claim, and of course before the decree was entered, tending to show that the land was worth more than ten thousand dollars; and if it be competent, as has always been held, to show by ex parte affidavits the amount of the value of the matter in dispute, it would seem that evidence to the same effect, deliberately put in by the very party now suggesting the defect, should be regarded as sufficient. It is also observable that the plaintiff, in his petition for an appeal, averred that the value of the property in dispute exceeded the sum of ten thousand dollars, and while, doubtless, that allegation, made for the purpose of showing that this court his jurisdiction on appeal, would not, of itself, supply the defect in the record of the Circuit Court, it is convincing that, in point of fact, the land in dispute was worth more than two thousand dollars, and that the plaintiff was not injured by the action of the court in permitting the record to be amended by affidavits supplying the formal averments of value.

Another error assigned is to the refusal of the court to

[ 156 U.S. Page 498]

     direct that the cause should be tried by the Honorable Lorenzo Sawyer, Circuit Judge, or in the event that it be found inconvenient for the Circuit Judge to try the cause, that the same be certified to the adjacent circuit of Oregon. The basis of this motion was an affidavit made by the plaintiff, alleging that the District Judge of the District of Washington, before whom the cause was about to come on for argument, had been, prior to his appointment as such judge, of counsel for some of the defendants.

The learned judge, in refusing the motion, stated that the motion was put upon the statement that he had been employed as an attorney by some of the defendants before his appointment to the office in matters not connected with the case, and that, as he was the only judge then present and able to try the cause, he was of opinion that it was his duty to do so.

Understanding then, as we do, that the ground of objection was that the judge had been, prior to his appointment, attorney for some of the defendants on matters not connected with the present case, we do not perceive that he was disqualified from trying the cause. In such a state of facts, the judge must be permitted to decide for himself whether it was improper for him to sit in the trial of the suit.

This was a proceeding in equity whereby Anthony P. Carr sought to have the defendants, who derived their titles to certain lands from Robert E. Sproul, to whom had been granted in 1875 a patent for said lands, declared trustees for his benefit on the ground that the patent had been improperly issued, and the substantial question in the case is as to what effect ought to be given to the proceedings and decision of the land office.

Appellant's first contention is that the tribunal that tried the case between Carr and Sproul was illegal in respect that instead of the register acting alone, the receiver took part in the hearing and decision. It is provided, in section 2297, Revised Statutes, that proof of abandonment is to be made out to the satisfaction of the register of the land office, and the record discloses that the evidence ...


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