Opinion of the Court.

plainant filed a motion and asked leave to further amend his bill by joining as parties complainant the names of other owners of property assessable by the city, so that the joint liability of such owners and the complainant would exceed $2000 for taxes, and thus remove the objection to the jurisdiction of the court that the amount involved in dispute did not exceed the sum of $2000.

On December 4, 1894, the court denied leave to amend the bill, and made a final decree disinissing the bill for want of jurisdiction. Thereupon the complainant prayed for an appeal to the Supreme Court, which was allowed by the District Judge.

Mr. H. Bisbee for appellant.

Mr. John C. Cooper for appellees. Mr. A. W. Cockrell filed a brief for same.

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

It is claimed on behalf of the appellant that the appeal may be sustained in this case because it is one in which the question of the jurisdiction of the court below is in issue, and thus within section five of the judiciary act of March 3, 1891.

But that section provides that "in such case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision," and this record does not disclose any such certificate.

Accordingly no course is left open to this court but to dismiss the appeal for want of jurisdiction. Any discussion of this question of practice is rendered unnecessary by the full treatment it received in the recent case of Maynard v. Hecht, 151 U. S. 324, wherein it was held that in the instance of an appeal upon the question of jurisdiction under the fifth section of the act, a certificate by the Circuit Court presenting such question for the determination of this court is explicitly and in terms required in order to invoke the exercise by this court of its

VOL. CLVII-24

Statement of the Case.

appellate jurisdiction, and that the absence of such certificate is fatal to the maintenance of the appeal. See likewise Shields v. Coleman, ante, 168.

Appeal dismissed.

STEVENS'S ADMINISTRATOR v. NICHOLS.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

No. 789. Submitted March 18, 1895. - Decided April 1, 1995.

The denial by a state court of an application to amend a petition for the removal of the cause to a Federal court is not the denial of a right secured by the Constitution of the United States.

MOTION to dismiss or affirm. In January, 1881, the defendant in error as plaintiff commenced a proceeding in the Circuit Court of Pettis County, Missouri, to procure the issue of executions against Robert S. Stevens and another as stockholders in the Texas & Atlantic Refrigerator Car Company, against which he had previously recovered a judgment. This proceeding was based upon section 736, Rev. Stats. Missouri, 1879 (now section 2517, Rev. Stats. 1889). The proceeding was removed by the defendants to the Circuit Court of the United States for the Western District of Missouri. In that court upon proper pleadings a trial was had resulting in a verdict and judgment in favor of the plaintiff and against each defendant for a separate amount. Stevens brought the judgment against him to this court by writ of error, but on examination it was found that the petition for removal was defective, in that it failed to allege the existence of diverse citizenship at the time of the commencement of the proceeding as well as at the time of the application for the removal. The case was, therefore, sent back to the United States Circuit Court, with instructions to remand it to the state court. Stevens v. Nichols, 130 U. S. 230. This order was carried into effect by the United States Circuit Court. In the state court thereafter an application was made for leave to amend the petition for the removal

Opinion of the Court.

so as to include an allegation of diverse citizenship at the time of the commencement of the proceeding. This application was denied. Subsequently a trial was had and a judgment rendered in favor of the plaintiff and against the defendant Stevens, which judgment was affirmed in the Supreme Court of the State. Whereupon defendant Stevens sued out this writ of error.

Mr. George P. B. Jackson for the motion.

Mr. George A. Madill, Mr. John M. Holmes, and Mr. James A. Carr opposing.

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

The Supreme Court of the State held that the refusal of the trial court to permit the defendant to amend his petition for removal was proper. Amendments of pleadings or other proceedings are as a rule matters of discretion with the trial court, and writ of error will not lie to review its action in respect thereto. Walden v. Craig, 9 Wheat. 576; Chirac v. Reinicker, 11 Wheat. 280; United States v. Buford, 3 Pet. 12; Matheson's Administrators v. Grant's Administrator, 2 How. 263.

The denial by a state court of an application to amend a petition for removal is therefore not the denial of any right secured by the Constitution of the United States. Crehore v. Ohio & Mississippi Railway, 131 U. S. 240; Pennsylvania Co. v. Bender, 148 U. S. 255. The judgment is

Affirmed.

Statement of the Case.

ORCHARD v. ALEXANDER.

PIERCE v. FRACE.

ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.

Nos. 192, 193.

Argued and submitted March 13, 1895. — Decided April 1, 1895.

The Commissioner of the General Land Office may direct the proper local land officer to hear and pass upon charges of fraud in the final proof of a preëmption claim upon which the requisite cash entry has been paid, and has jurisdiction to review the judgment of the local land officer in respect thereof; and the Secretary of the Interior has jurisdiction to review such judgment of the Commissioner, and to order such an entry, shown to be fraudulent, to be cancelled.

WHILE these two cases differ in their particular facts, they agree in the question involved, and for convenience may be considered together. As the opinion of the Supreme Court of the State of Washington was filed in the second case, the special facts of that will be stated. The action was commenced in the District Court of the Territory of Washington, sitting in and for the county of Pierce.

The complaint alleged that the plaintiff was the owner and entitled to the possession of a certain described tract or parcel of real estate situate in the county of Pierce, and prayed judgment for the recovery of possession, together with rents, issues, and profits.

The answer, beyond a general denial, set up by way of equitable defence that on December 20, 1880, the land described in plaintiff's complaint was unoccupied, unappropriated public land of the United States, and that on that day the plaintiff filed his declaratory statement therefor under the preëmption laws of the United States; that on February 13, 1883, he made his final proof, and on March 12, 1883, his cash entry was allowed by the register and receiver of the local land office; that on August 7, 1883, the defendant filed in the office of the Commissioner of the General Land Office, and afterward with the local land officers, his corroborated affidavit, in which he alleged that plaintiff had at no time estab

Statement of the Case.

lished his residence on the land; that he had failed to improve and cultivate the same as required by law, and that the cash entry had been procured by fraud; that on May 16, 1885, the Commissioner of the General Land Office ordered a hearing on those charges before the local land officers, and that in pursuance of such order the plaintiff and defendant appeared before those officers on July 13, 1885, for a trial of the questions raised and presented by the defendant's affidavits; that a trial was had, evidence was submitted, and the case argued by counsel, and thereupon the local land officers found as facts that the plaintiff had at no time established his residence on the land embraced in his entry, and that he had failed to improve and cultivate the land as required by law, and, as a conclusion of law therefrom, that the plaintiff's entry should be cancelled; that the plaintiff appealed to the Commissioner of the General Land Office, who, on June 3, 1886, affirmed the decision of the local land officers; that he took a further appeal to the Secretary of the Interior, who, on March 31, 1888, sustained the Commissioner of the General Land Office, and cancelled plaintiff's entry; that after this defendant filed upon the land under the homestead laws of the United States, made final proofs thereon, paid to the government of the United States the required price, and on July 26, 1889, received from the receiver of the land office a patent certificate for the land, by virtue whereof he claimed to be the owner and entitled to the possession.

To this answer an amended reply was filed, in which the plaintiff alleged that the proceedings initiated by the defendant were wholly void on the ground that the officers referred to had no jurisdiction over the lands or of the plaintiff, for the reason that the United States had theretofore sold and disposed of the land to plaintiff and received from him the sum of $400, in consideration of which sum the United States had undertaken and agreed to execute and deliver to him a patent. He set forth in detail that he had, in accordance with the preemption laws of the United States and the requirements of the General Land Office, published notice of his intention to make final proof; that on the date named in