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Opinion of the Court.

portant, his judgment was that, under the laws and practice of the State of New Jersey, the defendant was in his court, subject to its jurisdiction and bound by its decree.

It is contended on behalf of the plaintiff in error that, even if the defendant could not have been personally bound by a decree based on the supplemental bill because a subpoena thereunder had not been served upon him within the State of New Jersey, yet that, as the defendant, after the entry of such a decree against him, appeared in the New Jersey court by counsel, and procured a modification of the decree, he thereby subjected himself to the decree as amended.

It is also claimed that, as he admits that he acquiesced in and ratified the decree, by accepting that portion thereof which relieved him from the contract of marriage, he cannot be heard to impeach the decree in dealing with the change thus caused in his marital relations by subjecting him to the payment of costs and alimony.

The fact that the defendant appeared and procured an amendment of the decree and its enrolment in its final form, took place after the bringing of the present suit, and, to form the basis for the contention that he thereby subjected himself to the decree as amended, such fact ought, perhaps, to have been made to appear by an amended or supplemental petition. But as the amended decree was put in evidence by the defendant himself, and was treated by the New York courts as the final decree, whose effect they were considering, we shall regard the amended decree as the real ground of the plaintiff's

action.

As the appearance of the defendant was not for the purpose of objecting to the jurisdiction of the court, but was rather in the nature of an appeal to its jurisdiction, and as the objection successfully made to the decree as originally enrolled was restricted to one of its recitals, and did not attack the decree in the respect that it adjudged that he should pay the costs and alimony, there is force in the view that he thereby waived any right to further object to the decree. At all events, he could not successfully attack the decree collaterally in a court of different jurisdiction, but his remedy, if any he had, would be by way of appeal.

Opinion of the Court.

It is claimed by the defendant in error that to hold him personally bound by the decree for the payment of money would, in the circumstances of the present case, deprive him of his property without due process of law. This claim is based upon the assumption that the defendant had no hearing or opportunity to be heard.

As this record discloses that the defendant was served with process under the original bill, and appeared by counsel, and made answer, and was personally served with a copy of the supplemental bill and with an order to plead, and, after permitting himself to be defaulted, did appear by counsel and procured the vacation of the original decree and the enrolment of the decree amended in accordance with his own motion, it may fairly be said that he both had an opportunity to be heard and was heard. His appearance by counsel under the supplementary proceedings was not to object to the jurisdiction of the court, but to effect a change in the recitals of the decree on non-jurisdictional grounds. As before stated, we do not deem it necessary to consider the contention on behalf of the plaintiff in error that by such appearance the defendant estopped himself from alleging error in the decree when thus amended, but we think he certainly precluded himself from now contending that he has been deprived of his property within the meaning of the Federal Constitution.

As, then, the evidence of the defendant did not avail to show want of jurisdiction on the part of the Chancery Court of New Jersey to render the decree in question, and as it was admitted that the decree remained wholly unpaid, the plaintiff below was entitled to judgment.

The judgment of the Supreme Court is hereby reversed, and the case is remanded to the Supreme Court for further proceedings not inconsistent with the opinion of this court.

VOL. CLX-35

Statement of the Case.

JOHNSON v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 825. Argued November 11, 1895. - Decided January 18, 1896.

The act of March 3, 1891, c. 538, concerning Indian depredations, confers, by § 1, clause 1, no jurisdiction upon the Court of Claims to adjudicate upon such a claim, made by a person who was not a citizen of the United States at the time when the injury was suffered, although he subsequently became so; nor by § 1, clause 2, unless the claim was one which, on March 3, 1885, had either been examined and allowed by the Department of the Interior, or was pending therein for examination.

ON March 3, 1891, Congress passed an act, 26 Stat. 851, c. 538, vesting certain jurisdiction in the Court of Claims, the material portion of which is found in the first section, and reads as follows:

"That in addition to the jurisdiction, which now is, or may hereafter be, conferred upon the Court of Claims, said court shall have and possess jurisdiction and authority to inquire into and finally adjudicate, in the manner provided in this act, all claims of the following classes, namely:

"First. All claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation, in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for.

"Second. Such jurisdiction shall also extend to all cases which have been examined and allowed by the Interior Department and also to such cases as were authorized to be examined under the act of Congress making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June thirtieth, eighteen hundred and eighty-six, and for other purposes, approved March third, eighteen hundred and eighty-five, and under subsequent acts, subject, however, to the limitations hereinafter provided."

Statement of the Case.

The act of March 3, 1885, c. 341, referred to in this second clause, is found in 23 Stat. 362 and following, and the clause providing for examination is on page 376, and is as follows:

"For the investigation of certain Indian depredation claims, ten thousand dollars; and in expending said sum the Secretary of the Interior shall cause a complete list of all claims heretofore filed in the Interior Department and which have been approved in whole or in part and now remain unpaid, and also all such claims as are pending but not yet examined, on behalf of citizens of the United States on account of depredations committed, chargeable against any tribe of Indians by reason of any treaty between such tribe and the United States, including the name and address of the claimants, the date of the alleged depredations, by what tribe committed, the date of examination and approval, with a reference to the date and clause of the treaty creating the obligation for payment, to be made and presented to Congress at its next regular session; and the Secretary is authorized and empowered, before making such report, to cause such additional investigation to be made and such further testimony to be taken as he may deem necessary to enable him to determine the kind and value of all property damaged or destroyed by reason of the depredations aforesaid, and by what tribe such depredations were committed; and his report shall include his determination upon each claim, together with the names and residences of witnesses and the testimony of each, and also what funds are now existing or to be derived by reason of treaty or other obligation out of which the same should be paid."

The subsequent acts (May 15, 1886, c. 333, 24 Stat. 29, 44; March 2, 1887, c. 320, 24 Stat. 449, 464; June 29, 1888, c. 503, 25 Stat. 217, 234; March 2, 1889, c. 412, 25 Stat. 980, 998; August 19, 1890, 26 Stat. 336, 356) simply make additional appropriations for the examination of the same claims.

On June 20, 1891, claimant filed his petition in the Court of Claims to recover for property taken from him on June 10, 1866, by the Ute Indians. Subsequently, and on November 17, 1893, he filed an amended petition, containing these allegations:

Opinion of the Court.

"Your petitioner, Benjamin H. Johnson, à resident of Scipio, Millard County, in the Territory of Utah, and a citizen of the United States, respectfully shows :

"That he was not a citizen of the United States on or about the 10th day of June, 1866, the date of the loss hereinafter described, not having taken out his final citizenship papers until 1873.

"That he moved to the United States in 1848, when he was 13 years old, and has resided here ever since, and was a citizen of the United States at the date of the passage of the Indian depredation law of March 3, 1891. 26 Statutes, chapter 538, p. 851.

"That it is admitted in allowing claims for Indian depredations under the act of March 3, 1885, chapter 341, (1 Sup. R. S. 2d ed. p. 913, note,) it has been the practice of the Interior Department to interpret the words 'citizens of the United States,' therein used, as meaning only those who were citizens or had declared their intention to become citizens at the time the depredations were committed, and such citizenship was found when neither alleged nor testified to where the contrary did not appear.

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"That this claim was never presented to the Commissioner of Indian Affairs nor to Congress, nor any agent nor department of the government."

Whereupon the defendants moved to dismiss on the ground that "the claimant was not a citizen of the United States at the time of the depredation alleged to have been committed," which motion was sustained, and on December 4, 1893, a judgment entered dismissing the case for want of jurisdiction. 29 C. Cl. 1.

Mr. John Wharton Clark for appellant.

Mr. Assistant Attorney General Howry for appellees.

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

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