2 FEDERAL nmronrma.
length the allegations thereof, and asserting title in themselves to a
part of the said Eureka. claim, under another and an earlier location
owned by them, and called the Nest Egg. On the twenty-eighth day
of June, 1883, plaintiffs replied to the answer of defendants, and the
cause was at issue. Both parties were enjoined from working certain
parts of the ground in dispute, and various orders were made in the
case during the year 1883, relating to the examination and possession
of the claims. March 18, 1884, the cause came on for trial in the ·
district court, and the plaintiffs obtained a verdict, upon which, after
motion for a new trial, judgment was entered. Defendants have
paid the costs of that trial, pursuant to section 254 of the Code, the
_ judgment has been vacated,iand the- cause now stands for trial again,
according to the provisions ,0f.that.section. . , , . _
After this suit was brought, and in the month of October, 1883, the
plaintiffs applied for a patent to the Eureka lode. Three of the de-
fendants in that suit, Cornelia C. Evans, Charles L. Perkins, and
Frank C. Goudy, together with Edwin H. Hiller and Wilson Hallock,
who then owned the Nest Egg location, made adverse claim in the
land-office to a portion of the said Eureka claim, being the ground in
contest between the Eureka and Nest Egg locations, as described in
the before-mentioned suit of May 11, 1883. As provided in section
2326 of the Revised Statutes, the parties last named, on the tenth day
of November, .1883, brought suit in the saiddistrict court of Gunni-
son county in support of their adverse claim against the plaintiffs
in the flrslwmentioned suit. Three defendants in that suit, Hess,
Pierce, and Steward, were served with summons, November 19th,
and on the thirtieth of the same month they answered the complaint
in the cause, denying the allegations thereof, andaverring that they
had parted with their interestsin the Eureka claim, and disclaim-
ing all interest therein. February 4, 1884, plaintiffs replied to this
answer, and the replication was withdrawn May 26, 1884. On the
same twenty-sixth of May, upon plaintiffs’ request, the clerk of the
district court entered an order dismissing the cause as to the said
Hess, Pierce, and Steward. It does not appear that service was ever
made upon the remaining defendant, Charles H. Smith. He appeared
in the cause, March 31, 1884, and was allowed 10 days to plead to
the complaint. This time was afterwards extended 30 days from April
5, 1884. May 5, 1884, he filed a general demurrer to the complaint,
which has not been disposed of. May 27, 1884, in vacation, plain-
tiffs applied to the dist1·ict judge, 'upon petition, to remove the cause
- into the circuit court of the United States, on the ground that there
was a controversy between citizens of different states, under the act
of 1875; some of the plaintiffs being citizens of the state of Colorado,
and one a citizen of the state of New York, and defendant a citizen
of the state of Iowa. An order allowing the removal was made by
the district judge, and a transcript of the record was nled in this court,
June 2, 1884. The bill of complaint on whic_h the application for in-