CONSOLIDATED BUNGING ApPARATUS CO. 'D. AMERIOAN PROOESS MENTATION CO.
(Circult Court. E. D. WisconBin. August, 1885.)
EQUITY PRACTICE-DoCKET FEE-REV. ST. i 824-CASE DISCONTINUED. No docket fee is taxable in a suit in equity voluntarily discontinued by the complainant before allY hearing, either interlocutory or final.
In Equity. Banning Banning, for complainant. Gotzhllusen, Sylvester, Scheiber &; Sloan, for defendant. DYER, J. This is a suit in equity; and after issue joined by bill, answer, and replication, but before the taking of any proofs, and without the determination of any question in the case by the court, the' complainant voluntarily dismissed its bill. In the taxation of costs, the defendant contends that it is entitled to an allowance of a docket fee of $20 under the first clause of section 824 of the Revised Statutes. I have examined all the decisions that bear upon the question, and fully agree with the conclusions announced in Goy v. Perkins, 13 FED. REP. 111, by Mr. Justice GRAY and Judge LOWELL, and concurred in by Judge NELSON. and with the ruling in Yale Lock Mllnufg Co. v. Golvin, 14 FED. REP. 269, made by Judge WHEELER. The docket fee of $20 is only taxable in a suit in equity "on final hearing." What constitutes a final hearing within the meaning of section 824 is clearly and most satisfactorily shown by Mr. Justice BLATCHFORD in Woostet· v. Handy, 23 FED. REP. 52, and by the cases cited in his opinion. There was no such hearing, nor, indeed, any hearing, in this case. The taxation of a docket fee of $20 must therefore be disallowed. No docket fee whatever is given by the statute in a suit in equity voluntarily discontinued by the complainant, as this suit was, before any hearing, either interlQcutory or final.
OZARK LAND Co.
LEONARD and others.
(Uircuit Com't, E. D. Arkansas. May, 1885.)
INJUNCTION-NoT SUSPENDED BY SUPERSEDEAS. . A decree granting an injunction is not nnlliflerI or suspended by an appeal to the suprt:me court, though all the reqUisites for a are complied with.
In Equity. John B. Jones, for plaintiff. T. W. Brown and O. P. Lyles, for defendants.
OZARK LAND CO. 11. LEONARD.
CALDWELL, J. The defendants, by O. P. Lyles, their solicitor, tendered an appeal-bond in this case, and stated that the penalty of the bond was sufficient to cover the value of the timber on the lands in controversy, and prayed the opinion of the court as to whether the defendants, upon the approval of the bond, would have the right to cut and remove the timber from the lands in controversy, notwithstanding the injunction contained in the final decree perpetually enjoining them from so doing. The injunction is not nullified by the appeal. The supreme court say:
"Neither an injunction, nor a decree dissolving an injunction, passed in a circuit court, is reversed or nullified by an appeal or writ of error before the cause is heard in this court." Slau,qhter-house Cases, 10 Wall. 273.
This doctrine is reaffirmed in llovly v. McDonald, 109 U. S. 150, S. C. 8 Sup. Ct. Rep. 136, where the court Bay:
"It was decided that neither a decree for an injunction nor a decree dissolving an injunction was suspended in its effects by the writ of error, though all the requisites for a super,sedeas were complied with."
In the last case cited it is said the power undoubtedly exists in the circuit court, if the purposes of justice require it, to order a continuance of the status quo until a decision by the appellate court, and that equity rule 98 was adopted in recognition of this power. If no order was made by the court on the subject, the injunction would remain in force against the defendants, notwithstanding the appeal. But, to prevent any misconception on the subject, the order approving the bond will state that the appeal is not to suspend the injunction. This is proper, because for the court to permit the appeal to supersede the injunction, and the defendants to go forward and cut the timber on the land in controversy, would be to take from the plaintiff the fruits of its decree. The land is only valuable for its timber. If the defendants are allowed to cut and remove the timber, and the decree should be affirmed, the plaintiff, while nominally successful, would, in reality, lose the SUbject-matter of the litigation, which would go. to the defendants. It is said that in case the decree is affirmed the defendants and their sureties would be liable on the superse.deas bond to the plaintiff for the value of the timber cut. Conceding, but not deciding, that this would be so, then the result of a suspension of the injunction on the defendants would be. in effect, a sale by the court, at a price to be hereafter fixed by the verdict of a jury, of the timber on the land to the defendants, without the consent of the plaintiff. This is a case where the status quo should continue until the case is decided by the appellate court, and an order will be entered to that effect. This will preserve the rights of both parties.
OZARK LAND CO.
(Oircuit Oourt, E. D. Arkansas. April 20, 1885.)
DEOIlEE BY DEFAULT-NOT SET ASIDE, WHEN.
When a demurrer to the bill has been overruled, and a final decree is afterwards regularly rendered by default for want of an answer, the decree will not be set. aside without a satisfactory showing that the defendant has a meritorious defense. two inconsistent defenses, the result will be to deprive him of the benefit of either; and this rule applies to an answer under oath read as an affidavit of merils, on a motion to set aside a decree rendered by default, and the decree will not be set aside where the alfidavit sets up two flatly inconsistent defenses, as, for example, where one defense relied on is a tax title, in the defendant, to t.he lands, and the other is that the lands are and always have oeen tile property of the Umted etates.
2. INCONSISTENT DEFENSES IN EQUITY-EFFECT OF. It is a rnle in equity that where a defendant sets up by his answer under oath
In Equity. On motion to set aside a decree rendered by default, and permit defendants to answer. John B. Jones, for plaintiff. T. W. Brown and O. P. Lyles, for defendants. CALDWELL, J. The object of this suit is to quiet the title of the lands described in the bill. The bill alleges the plaintiff is the owner in fee of the lands, which are chiefly valuable for the timber upon them; that they are wild and unoccupied; and that the defendants set up a claim to the same based on an alleged tax title, which is void, and are trespassing on the same by cutting and carrying away the timber. The bill was filed December 14, 1883. The defendant Leonard was not found in this district, and an order was made on the fifth of February, 1884, that he be served in Tennessee, the state of his residence, with a copy of the order requiring him "to appear to the action, and plead, answer, or demur, on the first Monday in March, 1884." This order was served on that defendant on the sev(lOth of February, 1884. The defendants Allen and McRae were served with suhpama on the eighth of February, 1884. A demurrer to the bill was filed April 2, 1884, which, after argument, was overruled July 14, 1884. The demurrer raised questions which were decided in the case of Lamb v. Fan'ell, 21 FED. REP. 5, and in the opinion filed in this case, and reported in 20 FED. REP. 881. It was the duty of the defendants, under rule 34, to answer the bill the next succeeding rule-day after the demurrer was overruled, which would have been the first Monday in August. No answer was filed on that day, though the defendants had notice that the plaintiffs required the answer to be filed under the rule. The defendants continuing in default, on the sixth of October, 1884, a decree pro confesso was taken against them. Notice of the decree pro confesso was given to defendants' counsel, and no motion to set aside the same, or for leave to plead, having been made, on the seventh of November a final decree,