Opinion of the Court.

22d of September. On the 4th day of November appears an entry of a trial, with a verdict for the defendants, and judg ment thereon. This entry opens with this recital: "Now come the parties herein, by their attorneys; and also come the following-named persons as jurors, to wit." On November 12 the plaintiff filed a motion to set aside the judgment, and for a new trial, on the ground that after the case had been continued the order of continuance had been vacated in the absence of his counsel, and without notice; and because he had no notice or information that the cause stood for trial at that term, and had thus been prevented from presenting his evidence to the jury. In support of this motion the affidavit of one of plaintiff's counsel was filed, which, after stating the fact of the continuance, and the order setting it aside, continued as follows:

"Said order was so obtained during the absence of plaintiff's counsel and without notice to plaintiff or to affiant that appliIcation would be made to the court for the vacation of said order of continuance, and no notice or information whatever was served upon or communicated to said plaintiff that said cause stood for trial at this term until on the 11th day of November, 1887, and after judgment had been entered therein." The motion having been overruled, plaintiff sued out a writ of error from this court.

Mr. John S. Gregory for plaintiff in error.

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appearance for defendants in error.

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

The record of the trial shows that the parties appeared by their attorneys; discloses no application for a postponement, no objection to proceeding at the time, and no error in the course of the trial. As against this, there is an affidavit which, as certified by the clerk, is among the files in the case. For several reasons this is insufficient:

Opinion of the Court.

In the first place, only errors apparent on the record can be considered, and an affidavit filed for use on a motion is not part of the record, any more than the deposition of a witness used on the trial, and only becomes a part of the record by being incorporated in a bill of exceptions. Stewart v. Wyoming Ranche Co., 128 U. S. 383; Backus v. Clark, 1 Kansas, 303; Altschiel v. Smith, 9 Kansas, 90; Jenks v. School District, 18 Kansas, 356; Tiffin v. Forrester, 8 Missouri, 642; McDonald v. Arnout, 14 Illinois, 58; Smith v. Wilson, 26 Illinois, 186.

In the second place, there is nothing to show that this was the only affidavit. The certificate of the clerk is simply "that the foregoing folios, from 1 to 13, contain true and faithful transcripts from the records and files of said court in the case of Moses Evans v. Anna Stettnisch et al." This certificate may be true, and yet a dozen affidavits contradicting the statements in this have been filed and used on the motion.

In the third place, if it were affirmatively shown that there was only the one affidavit, that is not sufficient to overthrow the recital in the record. The record imports absolute verity; an affidavit of a witness does not; and when the court, which, in addition, may be supposed to have personal knowledge of the fact, sustains the recital in the record as against the statement in the affidavit, its ruling cannot on review be adjudged

erroneous.

In the fourth place, the statements in the affidavit are not necessarily a denial of the truth of the recital in the journal entry of the trial. The plaintiff was represented, as shown by the pleadings, by two counsel. This affidavit is by one only, and it is that no notice was given to plaintiff or affiant. The other counsel may have had notice and appeared, and consented to everything that was done. If so, plaintiff has no semblance of a cause for complaint.

The judgment is affirmed.

Statement of the Case.

BYERS v. MCAULEY.

MCAULEY v. MCAULEY.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA.

Nos. 124, 130. Argued and submitted February 2, 1893. — Decided May 10, 1893.

It is a rule of general application, that where property is in the actual possession of a court of competent jurisdiction, such possession cannot be disturbed by process issued out of another court.

An administrator appointed by a state court is an officer of that court; his possession of the decedent's property is the possession of that court; and as such it cannot be disturbed by process issued out of a Federal court.

The jurisdiction of the Federal courts is a limited jurisdiction, depending either upon the existence of a Federal question or the diverse citizenships of the parties; and where these elements of jurisdiction are wanting, it cannot proceed, even with the consent of the parties. Federal courts have no original jurisdiction in respect to the administration of decedents' estates, and they cannot by entertaining jurisdiction of a suit against the administrator, which they have the power to do in certain cases, draw to themselves the full possession of the res, or invest themselves with the authority of determining all claims against it.

A citizen of another State may proceed in the Federal courts to establish a debt against the estate, but the debt thus established must take its place and share in the estate as administered by the probate court; it cannot be enforced by direct process against the estate itself. Therefore a distributee, citizen of another State, may establish his right to a share in the estate, and enforce such adjudication against the administrator personally or his sureties, or against other persons liable therefor, or proceed in any way which does not disturb the actual possession of the property by the state court.

In this case it was reversible error for the Circuit Court to take any action or make any decree looking to the mere administration of the estate, or to attempt to adjudicate as between themselves the rights of the litigants who were citizens of the State of Pennsylvania, the res being in the possession of a court of that State.

The case of Payne v. Hook, 7 Wall. 425, explained and distinguished.

JAMES MCAULEY, who died on the 9th day of January, 1871, by his will, dated November 26, 1870, made large bequests to

Statement of the Case.

his sisters Margaret and Mary, and also devised to them a house and lot on Duquesne Way, in the city of Pittsburgh. Margaret died intestate in 1871, a few months after her brother, and her interest passed to her sister Mary, who died January 6, 1886, seized of said real estate, and leaving also a large personal estate. As respects the latter, she died intestate, but she left an instrument in writing signed by her, the body thereof being also in her handwriting, of which the following is a copy:

"By request of my dear brother, my house on Duquesne Way is to be sold at my death, and the proceeds to be divided between the Home of the Friendless' and the Home for Protestant Destitute Women.'

"MARY MCAULEY."

On January 12, 1886, this instrument was admitted to probate by the register of Allegheny County, Pa., as the will of Mary McAuley, and letters of administration cum testamento annexo upon her estate were issued to Alexander M. Byers.

Byers proceeded with the administration of the estate, and on January 29, 1887, he filed in the register's office an account showing his receipts and expenditures, and what balance he had in his hands for distribution, amounting to the sum of $212,235.61.

The account of Byers, as administrator with the will annexed, was examined and allowed by the register, and was presented for approval to the orphans' court of Allegheny County, and was by that court, on March 7, 1887, approved and confirmed nisi, and, no exceptions thereto having been filed, the confirmation became absolute.

Thereupon, in pursuance of statutory directions, this confirmed account was put upon the audit list of the orphans' court for distribution of the balance shown to be in the administrator's hands, and the court fixed March 29, 1887, as the day to hear the case.

On March 28, 1887, the day before the hearing thus fixed, a bill in equity was filed in the Circuit Court of the United States for the Western District of Pennsylvania, by Henry B.

VOL. CXLIX-39

Statement of the Case.

Shields, a resident and citizen of the State of Ohio, assignee of James McAuley, a citizen of the State of Kansas, and Henry B. Shields, in right of his wife, Melissa M. Shields, also a resident and citizen of Ohio, against the administrator Byers, and other parties claiming to be interested in the estate, among them the two corporations named in the instrument above quoted. The bill set forth the death of Mary McAuley; that there were two classes of claimants to the estate, to wit, the first and second cousins of the decedent; that the so-called will was null and void; and that there was a large amount of personal estate in the hands of defendant Byers, administrator, etc. The prayer was that the will and the probate be declared void and of no effect; that the administrator be enjoined from disposing of the real estate, and from collecting the rents therefrom, and that some suitable person be appointed to take charge of it until partition; that a partition of it be had and made to and among the various parties in interest, and that the defendant Byers be ordered and directed to make a full, just, and true account of all assets in his hands; that an account be taken of the testator's debts and funeral expenses, and the surplus be distributed among the plaintiff and all other parties legally entitled thereto; and for general relief. To this bill the administrator Byers filed a plea, setting up the proceedings in the orphans' court. This plea was, after argument, overruled by the Circuit Court.

The cause was then put at issue by answer and replication. On May 20, 1888, an interlocutory decree was entered, directing that said A. M. Byers, administrator of Mary McAuley, deceased, should file an account of the personal estate before a master who was then appointed, and the master was directed to take testimony as to the parties interested in the distribution of the balance in the hands of said administrator, and to report the testimony, with a schedule of distribution, to the court. The administrator stated before the master an account, which was identical with the account theretofore confirmed by the orphans' court. The master further took testimony as to who were the distributees, and reported the same to the court with a schedule of distribution.