Finally, in view of the facts above stated, appellant was estopped from claiming that the contract was other than as understood by the Gilliland Company, by her silence and acquiescence while having full knowledge of the understanding of the company. Morgan v. Railroad Co., 96 U.S. 716, 24 L. Ed. 743; J. Homer Fritch, Inc., v. United States, 234 F. 608, 148 C.C.A. 374 (reversed on other grounds 39 S. Ct. 158, 248 U.S. 458, 63 L. Ed. 359); Mo. Dist. Tel. Co. v. Morris Co., 243 F. 481, 490, 156 C.C.A. 179 (C.C.A. 8); Miami Cycle Mfg. Co. v. Allen, 257 F. 556, 168 C.C.A. 540; Hertzel v. Weber, 283 F. 921 (C.C.A. 8); Letta v. Cincinnati Iron Steel Co. (C.C.A.) 285 F. 707; George Tritch Hardware Co. v. Donovon, 221 P. 881, 74 Colo. 350. The result is that appellant had no valid claim against the company, and her alleged claim was rightfully dismissed.
On defendant's motion the court, May 7, 1925, dismissed the petition on the ground that it fails to state a cause of action. The case is here on writ of error to that court. J. Homer Fritch, Inc. v. United States, 248 U.S. 458. The petition alleges the following.
And this direct appeal was allowed. J. Homer Fritch, Inc. v. United States, 248 U.S. 458. U.S.C. Tit. 28, § 41(20).
Section 9(a), as we think, neither requires nor contemplates an appeal from or review of action by the Chief Executive, nor of the judicial proceedings had in the Supreme Court of the District of Columbia in connection with any such claims. To establish the existence of jurisdiction in the Court of Appeals and this Court to hear and determine the case, it is hardly sufficient to recite the fact that, in the absence of protest or objection, other similar cases have been adjudicated by the same and other tribunals. Fritch, Inc. v. United States, 248 U.S. 458; Baldwin Co. v. Howard Co., 256 U.S. 36; Estate of Beckwith v. Commissioner of Patents, 252 U.S. 538. Rather than to make that full, frank and perfect disclosure which the statute evidently contemplates on the part of its administrative officers charged with the duties of sequestering and preserving enemy property, these defendants have preferred to mask their own superior knowledge with silence and to obstruct the courts in their endeavors to administer the law as written by demanding "strict proof" from plaintiffs less fully informed than they themselves presumably must be.
Plaintiff took the case to the Circuit Court of Appeals on writ of error, but it should have been brought to this court. J. Homer Fritch, Inc. v. United States, 248 U.S. 458; Campbell v. United States, 266 U.S. 368. The case was transferred to this court under § 238a, Judicial Code; Act of September 14, 1922, c. 305, 42 Stat. 837. 293 F. 386. The facts admitted include the following.
The judgment was for $3,000 and interest. Plaintiff took the case to the Circuit Court of Appeals on writ of error, but it should have been brought to this court, (§ 24, par. 20, Judicial Code; J. Homer Fritch, Inc., v. United States, 248 U.S. 458,) and it was transferred under § 238a, Judicial Code. Act of September 14, 1922, c. 305, 42 Stat. 837. The question for decision is whether plaintiff was entitled to the damages to the remainder of his estate resulting from the use to be made of the lands acquired from others. In 1918, the United States, to aid in the prosecution of the war, had determined to build a nitrate plant at Ancor in the Little Miami Valley, near Cincinnati, Ohio.
40, in the federal court for the Eastern District of New York, under the Tucker Act. (Judicial Code, § 24, par. 20.) That court sustained a demurrer to the petition and entered judgment for defendant. 269 F. 58. The case is brought here by both writ of error and appeal. It is properly here on writ of error, Chase v. United States, 155 U.S. 489; J. Homer Fritch, Inc. v. United States, 248 U.S. 458. The sole question presented for decision is whether the method of calculating the taxes adopted by the Treasury is in harmony with the provisions of the Revenue Act. Section 201: "That in addition to the taxes under existing law and under this act there shall be levied, assessed, collected, and paid for each taxable year upon the income of every corporation, partnership, or individual, a tax . . . equal to the following percentages of the net income:
That no change in the meaning of the Act of 1888 was intended or wrought by the mere rearrangement of its sections or parts as incorporated into the Judicial Code is shown by §§ 294 and 295 of the Code. See Brown v. Fletcher, 235 U.S. 589, 597; United States v. Cress, 243 U.S. 316, 331; J. Homer Fritch, Inc. v. United States, 248 U.S. 458, 463. The plaintiff cites the cases of Tennessee v. Bank of Commerce, 152 U.S. 454; Cochran v. Montgomery County, 199 U.S. 260, and In re Winn, 213 U.S. 458, as holding that to be removable into a particular federal court a suit must be one which as of right could have been brought originally in that court.
The answer to be given to it depends upon the nature of the jurisdiction conferred upon the District Court by § 10 of the Lever Act. If the jurisdiction is to be exercised in the manner provided by § 24, paragraph 20, of the Judicial Code, which confers upon the District Court jurisdiction concurrent with the Court of Claims, a direct writ of error lies from this court. J. Homer Fritch, Inc. v. United States, 248 U.S. 458. If, however, the jurisdiction is the ordinary jurisdiction of the District Court, the writ of error should have gone, in the first instance, from the Circuit Court of Appeals under § 128 of the Judicial Code. The nature of the jurisdiction of the District Court is of importance, not only because of the question directly involved, but because the answer given to it will determine incidentally whether plaintiffs who proceed under § 10 are entitled to a trial by jury. For § 24, paragraph 20 of the Judicial Code declares that "all suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury."
No question of the jurisdiction of the court was considered in that case, and an inadvertent allowance of the writ of certiorari does not establish the jurisdiction of the court. Fritch, Inc. v. United States, 248 U.S. 458, 463. It follows that the appeal must be dismissed, and the petition for a writ of certiorari denied.