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It is contended that the jurisdiction of the upon that estate a liability for debts of circuit court must fail, because no one de John Evans, which were held by the defendfendant has a claim of the required jurisdic-ants, and which they, acting in combination, tional amount. In support of this conten- procured, in co-operation with James Evans, tion, several cases are cited of the class to to be allowed as claims against the estate of which Walter v. Northeastern R. Co. 147 U. Hiram Evans. By reason of that combinaS. 370, 373, 37 L. ed. 206, 208, 13 Sup. Ct. tion, resulting in the allowance of all those Rep. 348, 349, belongs. That was a suit by claims in the probate court, as expenses of a railroad company against the treasurers administering the estate of Hiram Evans, and sheriffs of several counties through the defendants have so tied their respective which its road passed, to enjoin them--sep- claims together as to make them, so far as arately, of course—from issuing executions the plaintiffs and the relief sought by them against, or seizing the property of, the com- are concerned, one claim. The validity of pany for the purpose of collecting a tax all the claims depends upon the same facts. based upon an assessment alleged to be un- The lien on the lands which is asserted by constitutional and voià. The court said: each defendant has its origin as well in the "It is entirely clear that, had these taxes combination to which all were parties as in been paid under protest, and the plaintiff the orders of the probate court, which, in had sought to recover them back, it would furtherance of that combination, were prohave been obliged to bring separate actions cured by their joint action. Those orders

. in each county. As the amount recoverable were conclusive against the plaintiffs, as to from each county would be different, no all the claims, if the claims could be aljoint judgment could possibly be rendered. lowed at all against the estate of Hiram So, had a bill for injunction been filed in a Evans.

Evans. A comprehensive decree by which state court, and the practice had permitted, the plaintiffs can be protected against those as in some states, a chancery subpena to be orders will avoid a multiplicity of suits, served in any county of the state, these de- save great expense, and do justice. If the fendants could not have been joined in one plaintiffs do not prove such a combination bill, but a separate bill would have had to and conspiracy, in respect, at least, of so be filed in each county.

It is well many of the specified claims as in the aggresettled in this court that when two or more gate will be of the required amount, then plaintiffs, having several interests, unite, for their suit must fail for want of jurisdiction the convenience of litigation, in a single in the circuit court; for, in the absence of suit, it can only be sustained in the court of the alleged combination, the claim of each original jurisdiction, or on an appeal in this defendant must, according to our decisions, court, as to those whose claims exceed the be regarded, for purposes of jurisdiction, as jurisdictional amount; and that, when two separate from all the others. or more defendants are sued by the same An instructive case on the general subject plaintiff in one suit, the test of jurisdiction is Shields v. T'homas, 17 How. 3, 15 L. ed. is the joint or several character of the lia- 93. That was a suit in equity in a Kenbility to the plaintiff.”

tucky state court in which the plaintiffs, as The case before us, however, is presented the legal representatives of an intestate, by the bill in an entirely different aspect. sought a decree for certain proportionate The case may be regarded as exceptional in amounts alleged to be due them respectively its facts, and may be disposed of without from the defendant, who had married the affecting former decisions. There is no dis- widow and thereby obtained possession of

. pute as to the amount of any particular the property of the deceased. The defendclaim. So far as the bill is concerned, if ant was charged with having converted to any one of the specified claims is good his own use a large amount of the intestate's against the estate of Hiram Evans, then all property to which the legal representatives are good; if the lands in question, or any in- of the intestate, plaintiffs in the suit, were terest in them, can be sold to pay one claim, entitled. In that suit a decree was rendered they must be sold to pay all. The court against the defendant for a large sum of could not, under the bill, enjoin the prosecu- money, “the shares of the respective comtion of one claim and leave the others un plainants being apportioned to them in the touched. The matter in dispute is whether decree,” and the defendant being required by the lands in which the plaintiffs have a the decree to pay to each of the plaintiffs joint, undivided interest of one half can be the specific sum to which he was entitled as sold to pay all the claims, in the aggregate, his portion of the property misappropriated which the defendants, by combination and by him. Subsequently a suit was brought conspiracy, procured the probate court to in a circuit court of the United States (juallow against the estate of Hiram Evans. risdiction being based on diversity of citiThe essence of the suit is the alleged fraudu- zenship) to enforce the decree rendered in lent combination and conspiracy to fasten' the Kentucky state court, and to compel the

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defendant to pay to the plaintiffs, respective | Rep. 603, 605, the court, interpreting the dely, the several sums which had been decision in that case, said: “It was held that, creed in their favor. A decree to that effect where the representatives of a deceased inwas rendered. The whole amount which the testate recovered a judgment against an addefendant was required by the decree to pay ministrator for an amount in excess of the was large enough to give this court jurisdic- sum necessary to confer jurisdiction to retion on appeal, although the specific sum view, and such recovery was had under the awarded to each plaintiff was less than the same title and for a common and undivided jurisdictional sum. The defendant appealed interest, this court had jurisdiction, alto this court, and a motion was made to dis-though the amount decreed to be distributed miss the appeal on the ground "that the sum to each representative was less than the due to each complainant is severally and jurisdictional sum." See also The Connespecifically decreed to him; and that the mara (Sinclair v. Cooper), 103 U. S. 756, amount thus decreed is the sum in con- 26 L. ed. 322; Handley v. Stutz, 137 U. S. troversy between each representative and 369, 34 L. ed. 708, 11 Sup. Ct. Rep. 117; the appellant, and not the whole amount for New Orleans P. R. Co. v. Parker, 143 U. S. which he has been held liable."

51, 36 L. ed. 68, 12 Sup. Ct. Rep. 364; Texas After observing that, if that view of the & P. R. Co. v. Gentry, 163 U. S. 361, 41 L. matter in controversy was correct, this court ed. 191, 16 Sup. Ct. Rep. 1104; Davis v. was without jurisdiction, Chief Justice Schwartz, 155 U. S. 631, 647, 39 L. ed. 289, Taney, speaking for the court, said: “But 296, 15 Sup. Ct. Rep. 237. the court think the matter in controversy, It is said that as to any single one of the in the Kentucky court, was the sum due to claims in question the plaintiffs in the presthe representatives of the deceased collective-ent case could have released the lands in ly, and not the particular sum to which each which they had an undivided interest by was entitled, when the amount due was dis paying that particular claim; therefore, it tributed among them, according to the laws is argued, the value of the matter in disof the state. They all claimed under one pute, as between the plaintiffs and such deand the same title. They had a common fendant, was the amount of the latter's and undivided interest in the claim; and it claim. And so as to each separate claim. was perfectly immaterial to the appellant But that same thing could have been said as how it was to be shared among them. He to the respective claims involved in Shields had no controversy with either of them on v. Thomas. The defendant there could have that point; and, if there was any difficulty paid off any of the respective claims inas to the proportions in which they were to volved. This court, however, held that fact share, the dispute was among themselves, to be immaterial because the defendant disand not with him. It is like a contract with puted the validity of the original decree several to pay a sum of money. It may be holding him liable for all the claims, and that the money when recovered is to be di- had no concern as to how the whole amount vided between them in equal or unequal pro-decreed against him was to be distributed. portions. Yet, if a controversy arises on the So here, the plaintiffs, suing to protect their contract, and the sum in dispute upon it ex- common undivided interest in lands put in ceeds $2,000, an appeal would clearly lie to peril by fraudulent orders obtained by the this court, although the interest of each in defendants acting in combination to obtain dividual was less than that sum. This be- such orders for their benefit, are only coning the controversy in Kentucky, the decree cerned in preventing the defendants from of that court, apportioning the sum recov- proceeding under the orders of the probate ered among the several representatives, does court, which they procured for their benefit not alter its character when renewed in equally, and under which they all now Iowa. So far as the appellant is concerned, equally claim. The plaintiffs made no conthe entire sum found due by the Kentucky test as to particular claims. They dispute court is in dispute. He disputes the valid all of them as claims against Hiram Evans's ity of that decree, and denies his obligation estate. If the orders of the probate court to pay any part of the money. And if the stand for the benefit of the respective deappellees maintain their bill, he will be fendants, then the plaintiff's interests in the made liable to pay the whole amount de- lands are liable for all the claims asserted creed to them. This is the controversy on his by the defendants; for there is no dispute part; and the amount exceeds $2,000. We here as to the amount of any particular think the court, therefore, has jurisdiction claim. Hence, as we have said, the value of on the appeal.”

the matter in dispute is the aggregate The doctrines of Shields v. Thomas have amount of the claims fraudulently procured been frequently recognized by this court. In by the defendants acting in combination to the recent case of Overby v. Gordon, 177 U. be allowed in the probate court as claims S. 214, 215, 44 L. ed. 741, 743, 20 Sup. Ct. 'against the estate of Hiram Evans. ,



For the reasons stated we hold: 1, That it:) A PPFAL. from the Supreme Court of the circuit court

Territory the case made by the bill, to deprive the deplication for a writ of mandamus to compel fendants, acting in combination and claim the judge of the District Court of the Secing the benefit of the orders made in the ond Judicial District of that Territory to probate allowing their respective claims. 2. take jurisdiction of an action attempted to That the value of the matter in dispute in be brought in that court. Affirmed. the circuit court was the aggregate amount See same case below (N. M.), 78 Pac. 624. of all the claims so allowed against the es- The facts are stated in the opinion. tate of Hiram Evans.

Mr. Neill B. Field for appellant. The decree is reversed with directions to 11 essrs. Robert Dunlap and E. D. Kenset aside the order dismissing the suit for na for appellee. want of jurisdiction, to overrule the demurrer, and for further proceedings as may be Mr. Justice Harlan delivered the opinion consistent with this opinion and with the of the court: law.

This appeal brings up for review a final Reversed.

judgment of the supreme court of the ter

ritory of New Mexico denying an applica(196 U. S. 432)

tion to that court by the Caledonian Coal TERRITORY OF NEW MEXICO ex rel. Company for a writ of mandamus to compel Caledonian Coal Company, Appt., Benjamin S. Baker, judge of the district

court of the second judicial district of that BENJAMIN S. BAKER, Associate Justice territory, to take cognizance of a certain ac

of the Supreme Court of the Territory of tion brought in that court against the Santa New Mexico and Judge of Second Judicial Fé Pacific Railroad Company and others. District Court thereof, etc.

The petition for mandamus makes the fol

lowing case: Action-abatement-substitution of succes- On the 17th day of February, 1904, the

sor in public office-service of summons Caledonian Coal Company, organized under on officer of corporation.

the laws of New Mexico, commenced an ac

tion in the district court of the second judi1. The successor in ofice of a judge of a tercial district of that territory against the

ritorial court may be substituted in the place Santa Fé Pacific Railroad Company, the of his predecessor on appeal from a final Atchison, Topeka, & Santa Fé Railroad judgment denying mandamus to compel the latter to take jurisdiction of an action at Company, the Colorado Fuel & Iron Comtempted to be brought in his court, since the pany, and the American Fuel Company, to case may properly be considered one in which recover damages for alleged violations of the there is a necessity for such action in order Interstate Commerce Act of 1887 and the to obtain a settlement of the question in anti-trust act of 1890. volved, within the meaning of the act of February 8, 1899 (30 Stat. at L. 822, chap. 121,

By the 9th section of the above act of U. S. Comp. Stat. 1901, p. 697), authorizing 1887 it is provided that "any person or persubstitution in actions brought by or against sons claiming to be damaged by any common Federal public officers in their official capac-carrier subject to the provisions of this act ity, or in relation to the discharge of their may either make complaint to the Commisofficial duties. *

sion as hereinafter provided for, or may 2. The mere ownership of lands in New Mex. bring suit in his or their own behalf for the

ico by a railroad company organized and existing under the act of Congress of March 3, recovery of the damages for which such com1897 (26 Stat. at L. 622, chap. 374), none mon carrier may be liable under the proviof whose offices are located in the territory, sions of this act, in any district or circuit or the bringing of suits in that territory to court of the United States of competent juprotect its land against trespasses, is not risdiction; but such person or persons shall sufficient, under N. M. Comp. Laws 1897, $ 450, to authorize the service of summons not have the right to pursue both of said upon its president while passing through the remedies, and must in each case elect which territory on a railroad train, in a personal one of the two methods of procedure herein action in which an attachment may be levied provided for he or they will adopt. upon the lands to satisfy any judgment that 24 Stat. at L. 379, chap. 104, U. S. Comp. may be obtained, even assuming that the provisions of this statute could be made ap

Stat. 1901, p. 3159. And by § 7 of the above plicable to a corporation created by an act act of 1890 it was provided that "any person of Congress.

who shall be injured in his business or prop

erty by any other person or corporation, by [No. 419.]

reason of anything forbidden or declared to

be unlawful by this act, may sue therfor in Árgued January 27, 1905. Decided Febru- any circuit court of the United States in the ary 20, 1905.

district in which the defendant resides or is

*Ed. Note.-For cases in point, ses vol. 23, Cent. Dig. Mandamus, $ 52.

found, without respect to the amount in con- tory and judge of the district court of the troversy, and shall recover threefold the second judicial district, quashed the return damages by him sustained, and the costs of of the above summons, and refused to assuit, including a reasonable attorney's fee." sume jurisdiction of the action, so far as the 26 Stat. at L. 209, chap. 647, U. S. Comp. Santa Fé Pacific Railroad Company was conStat. 1901, p. 3202.

cerned, or to require that company to an. A summons was issued against the Santa swer the declaration or complaint filed by Fé Pacific Railroad Company, and was re- petitioner. turned by the marshal of the territory, the The defendant Baker made a return to a return stating that it was served at the rule issued against him to show cause. From above district on the 13th day of May, 1904, that return it appears that the Santa Fé by delivering a true copy thereof, with a Pacific Railroad Company specially apcopy of the complaint thereto attached, to peared in the action for the purpose of movE. P. Ripley, president of the defendant cor- ing, and did move, to quash the service of poration.

process, upon grounds set forth in an afThe Santa Fé Railroad Company is a cor- fidavit of its president. In that affidavit poration organized and existing under the Ripley stated that, when served with sumact of Congress of March 3d, 1897, defining mons, he was only a passenger on a railroad the rights of purchasers under mortgages train passing through the territory; that authorized by an act of Congress approved the company had its office in the city of April 20th, 1871 [17 Stat. at L. 19, chap. New York, while its land commissioner had 33], concerning the Atlantic & Pacific Rail- an office at Topeka, Kansas, and its presiroad Company. 29 Stat. at L. 622, chap. dent an office at Chicago, Illinois; that the 374.

company had no property in the territory When the grievances set out in the peti- of New Mexico, except lands acquired by it tion were committed, the Santa Fé Pacific under a foreclosure of a mortgage of the AtRailroad Company was the owner of a line lantic & Pacific Railroad Company, and which of railroad within the second judicial district lands were undisposed of; that it has had of New Mexico and elsewhere within that no office or place of business in the territory territory, but which line, at the commence since the sale of its road. This affidavit was ment of this action, had been sold and trans- used on the hearing of the motion to quash, ferred to, and was being operated by, the and the facts stated in it were not contraAtchison, Topeka, & Santa Fé Railroad dicted. Company under a conveyance authorized by The contention of the company, therefore, an act of Congress of June 27th, 1902 (32 was that the service in question was insuffiStat. at L. 405, chap. 1159); was the owner cient to bring the company, personally, beof several hundred thousand acres of land fore the court. within that district; and, at the commence- The return of the judge also stated that ment of the action for damages, was prose- the actions in ejectment brought by the railcuting in one of the counties of the terri- road company against trespasses upon its tory, within the same district, suits involv-property were instituted prior to the sale of ing the company's title and possession of its railroad property and franchises to the parts of those lands.

Atchison, Topeka, & Santa Fé Railroad ComAll of those lands, with the rights, priv- pany; and that the refusal of the judge to ileges, and franchises appertaining thereto, assume jurisdiction in the case referred to were acquired by the Santa Fé Pacific Rail-was upon the ground that the service upon road Company as the successor of the At- Ripley as president of the company was not, lantic & Pacific Railroad Company, to which in his opinion, suficient to subject it perlast-named company they were granted by sonally to the jurisdiction of the court. the act of Congress of July 27th, 1866. 14 The relief sought was an alternative writ Stat. at L. 292, chap. 278.

of mandamus, directing Judge Baker to as. The petition for mandamus alleged that, sume jurisdiction of the cause, so far as the by reason of the above facts, the Santa Fé Santa Fé Railroad Company was concerned, Pacific Railroad Company was an "inhabit- and to require that company to plead, anant” of the second judicial district of New swer, or demur. Mexico, and, by reason of the presence of The supreme court of the territory, after Ripley, its president, in that territory and hearing the case, upon the pleadings, return, within that district, and the service of sum- and the proofs, denied the petition for manmons in the above action upon him as such damus, and dismissed the application. From president, the company was "found” in the that order the present appeal was prosedistrict within the meaning of the acts of cuted. Congress.

At the present term the appellant sug. Nevertheless, the defendant Baker, associ- gested that Judge Baker had been succeeded ate justice of the supreme court of the terri-' in office by Judge Ira A. Abbott. And it.

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moved that such order be made in the prem- retirement from office of the original defendises as would be conformable to the rules ant, the writ must abate in the absence of and practice of this court. Judge Abbott any statutory provision to the contrary. consents that the action may be revived When the personal duty exists only so long against him as the successor of Judge Baker, as the office is held, the court cannot compel and proceed to a hearing, without further the defendant to perform it after his power summons or notice, upon the record as now to perform has ceased. And, if a successor presented to the court.

in office may be substituted, he may be The first question to be considered is mulcted in costs for the fault of his predewhether it is competent for this court, Judge cessor, without any delinquency of his own. Baker having ceased to be judge, to substi- Besides, were a demand made upon him, he tute the name of his successor, as the ap- might discharge the duty and render the inpellee.

terposition of the court unnecessary. At all In United States v. Boutwell, 17 Wall. events, he is not in privity with his prede604, 607,21 L. ed. 721, 722, which was a man cessor; much less is he his predecessor's perdamus against Mr. Boutwell as Secretary of sonal representative. As might be expected, the Treasury, it appeared that after the therefore, we find no case in which such a case was brought to this court the defendant substitution as is asked for now has ever resigned his office. Thereupon a motion was been allowed in the absence of some statute made to substitute the name of his succes- authorizing it." sor, Mr. Richardson. It did not appear that That case was followed by United States any previous application was made to the ex rel. Warden v. Chandler, 122 U. S. 643, latter for leave to substitute his name, and 30 L. ed. 1244; United States ex rel. Long v. he opposed the motion, which was denied. Lochren, 164 U. S. 701, 41 L. ed. 1181, 17

Mr. Justice Strong delivered the opinion Sup. Ct. Rep. 1001 ; Warner Valley Stock of the court, saying: "The office of a writ Co. v. Smith, 165 U. S. 28, 41 L. ed. 621, 17 of mandamus is to compel the performance Sup. Ct. Rep. 225, and United States ex rel. of a duty resting upon the person to whom Bernardin v. Butterworth, 169 U. S. 600, the writ is sent. That duty may have 604, 605, 42 L. ed. 873, 874, 875, 18 Sup. Ct. originated in one way or in another. It Rep. 441. In the latter case the court, after may, as is alleged in the present case, have referring to prior cases, concluded its opinarisen from the acceptance of an office which ion in these words: “In view of the inconhas imposed the duty upon its incumbent. venience, of which the present case is a But no matter out of what facts or relations striking instance, occasioned by this state of the duty has grown, what the law regards, the law, it would seem desirable that Conand what it seeks to enforce by a writ of gress should provide for the difficulty by enmandamus, is the personal obligation of the acting that, in the case of suits against the individual to whom it addresses the writ. If heads of departments abating by death or he be an officer, and the duty be an official resignation, it should be lawful for the sucone, still the writ is aimed exclusively cessor in office to be brought into the case by against him as a person, and he, only, can petition, or some other appropriate method.” be punished for disobedience. The writ does Later, Congress, its attention being thus not reach the office. It cannot be directed to called to the matter, passed the act of Febit. It is therefore, in substance, a personal ruary 8th, 1899, chap. 121, by which it was action, and it rests upon the averred and as- provided "that no suit, action, or other pro

, , sumed fact that the defendant has neglected ceeding lawfully commenced by or against or refused to perform a personal duty, to the head of any department or bureau or the performance of which by him the re- other officer of the United States, in his oflator has a clear right. Hence, it is an im- ficial capacity, or in relation to the disperative rule that, previous to making ap-charge of his official duties, shall abate by plication for a writ to command the per- reason of his death, or the expiration of his formance of any particular act, an express term of office, or his retirement, or resignaand distinct demand or request to perform tion, or removal from office; but in such it must have been made by the relator or event the court, on motion or supplemental prosecutor upon the defendant, and it must petition filed at any time within twelve appear that he refused to comply with such months thereafter, showing a necessity for demand, either in direct terms, or by con- the survival thereof to obtain a settlement duct from which a refusal can be conclusive of the questions involved, may allow the ly inferred. Thus, it is the personal default same to be maintained by or against his sucof the defendant that warrants impetration cessor in office, and the court may make such of the writ, and, if a peremptory mandamus order as shall be equitable for the payment be awarded, the costs must fall upon the de- of costs.” 30 Stat. at L. 822, U. S. Comp. fendant.” The court proceeded: “It neces- Stat. 1901, p. 697. sarily follows from this that, on the death or In view of the reasons assigned, in the

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