for sale. Wherefore, the complainants ask that sucb sale be restrained by an injunction. For the facts concerning said intervening petition, see 25 Fed. Rep. 2. Walter C. Larned and Theodore G. Case, for complainants. TREAT, J. The plaintiffs, being non-residents, have a right jurisdictionally to institute this proceeding. It is claimed that such right exists also in consequence of a decree of this court in Blair v. St. Louis, H. <t K. R. R., (case No. 2,301,) 25 :Fed. Rep. 232, causing the sale of the property of which the plaintiffs were the purchasers. The defendants in this case were not, under the proceedings had, parties to said suit, and consequently not bound thereby. They Bought by intervention to become parties, to which objections were made, and the court dismissed their intervention without prejudice, thereby remitting their rights to the state court, wherein their judgment had been entered. The validity of said judgment is not assailed in this bill filed. On what ground, then, is an injunction sought against said judgment and the process issued thereon? Certainly it is a mistake to suppose that the decree of this court concluded the rights of those not parties thereto. The language of the decree can· not be construed to cover more than what the law permits. Besides, the records of this oourt show that, instead of passing upon the force and effect of the judgment in question, this conrt, under objections made, determined expressly that whatever was done in this tribunal should be subject to that outstanding controversy. If, then, the judgment of the state court is valid, how can these plaintiffs invoke an order to enjoin the same. Under the acts of congress, and ordinary rules in equity, plaintiffs have no standing for this motion. Motion denied.
CENTRAL TRUST Co. and another 'V. WABASH, ST. L. & and others. 1
(Circuit Oourt, B. D. Missouri. January 6,1886.)
PRACTICE-MISLEADING STATEMENTS BY COUNSEL.
Where a party has been fairly misled by the conduct or statements of opposing counsel, this court will, as a rule. see that he does not Buffer thereby.
In Equity. In the matter of the motions to remand on the petition of the United States Trust Company. q'he United States Trust Company, being desirous of foreclosing its mortgage on the Omaha Division of the Wabash system, appeared . by its attorney, Mr. Sheldon, before BREWER, J., and obtained an orJ
Reported by Benj. F. Rex, Esq., of the St. Louis bar.
CENTRAL TRUST CO.
WABABH, ST. L. & PAC. RY. CO.
der permitting it to make the receivers appointed in the case of Central Trust Co. v. Wabash, St. L. & Pac. Ry. Co., parties to forecloBure suits to be brought in state courts of Iowa and Missouri. The order was made, with the understanding that the object in bringing the foreclosure suits in state courts instead of federal tribunals was to avoid certain jurisdictional questions, and that after being insti. tuted the suits would be removed to the federal courts by the United States Trust Oompany, and there proceeded with. The cases were not removed by the United States Trust Oompany, however, and were finally removed to the United States circuit courts for the Western district of Missouri and the Southern district of Iowa by the Wabash receivers, against the objection of the United States Trust Oompany. which thereupon moved to remand. The matter having been brought up,before BREWER. J., at chambers. in St. Louis, the following opinion was delivered: Sheldon It Sheldon, for United States Trust 00. Phillips It Stewart, for Oentral Trust 00.' . Wells H. Blodgett and H. S. Priest, for Receivers. BREWER, J., (orally.) I wish now to dispose of a matter that is really pending in other districts, but was argued here; and that is, the motions to remand in the cases of the United States Trust Company v. The Wabash Road, The Receivers. et al. I believe it is backed up by ancient authority that it is oftentimes better, if not easier, to cut a knot than untie it, and I think I shall do that in this case. It is unnecessary to go back over the whole history of tbis trans. action. It is enough to say that an order was obtained from this court upon statements and representations that a certain line of policy was intended and a certain course would be pursued, and that after. wards that course was not pursued. I do not mean to say by that that I suppose counsel came before me, or afterwards before my Brother TREAT. with any intention of deceiving or of obtaining an or. der from the court by misrepresentation. I take it to be true, as they say, that that was not their purpose; but still, the fact is that they obtained an order upon representation that a certain plan waR to be pursued which was not pursued. Upon obtaining that order, and by virtue thereof, suits were commenced in the state courts of Iowa and Missouri, and after some time had intervened the receivers filed petitions and bonds for removal to the federal courts. Now motions to remand are made. The receivers, or their counsel, insist that. they WE're misled by conferences with counsel, and by the statements in open courts, into the belief that the plaintiff would itself remove. The plaintiff. on the other hand, claims that there was no occasion for any such mistake on the part of counsel for receivers; that the term of court at which removal could be had in each case had passed before the petition and bond were filed; and, finally, that if both of these things be not true, the cases a.re not such as are removable at the instance of the receivers·
I dd not propose to decide either one of those three questions, simply saying that it is generally true that where a party has been misled-fairly misled-by the conduct or statements of opposing counsel, the court will see that he does not suffer thereby. I think, in these cases, the federal courts might have acquired unquestioned jurisdiction; that there is nothing in the nature of the cases which would prevent such jurisdiction; and that the only objection which can be raised is as to the manner in which, and the party by whom, the removal was obtained. Now I, of course, concede that if the case is one of which the federal courts could not take cognizance, that nothing is waived, and nothing can be waived, as to the matter of juris diction; but if the case is one of which the federal courts might take is in the mancognizance and have jurisdiction, and the only ner in which the case is put into those courts, a waiver of such defect can be made. As between the mortgagor and the mortgagee,-as between the Wabash road, the successor of the mortgagor, and the , United States Trust Gompany,-there waa in each case a separable controversY,-a controversy independent of any question as to the apportionment of the burden of receivers' certificates and outstanding floating liabilities. There was a separable, independent controversy between citizens of different states, and, as such, either the plaintiff or the Wabash road could have removed the entire cause into the eral courts. Now, if the plaintiff had proceeded in accordance with the plan which counsel indicated at the time they obtained this order, the cases would have passed to the federal court at their instance, and the jurisdiction would have been unquestioned. But there has been a mistake. Counsel have been misled, and I think it no more than l'ight to the parties to say that these cases must stand now where they would have stood if the parties had proceeded acccording to the plan which they stated they intended to pursue; and, asa short cut to that, I shall enter an order in each of those courts-that of the Western district of this state and the Southern district of Iowathat unless the plaintiff, within 30 days, withdraws his motion to remand, and proceeds with the litigation in those courts, I shall set aside every order that has been made authorizing suit against the receivers or perIIlitting them to be made parties in the litigation. In that way, the cases will stand as I think they unquestionably ought to stand, and as the parties represented when they got the order they intended they should Ittand, for hearing and determination in the federal courts. Before dropping the matter, let me add two other s\tggestions. If there is anyone thing that I think the court has a right to insist upon in the dealings between itself and counsel, it is that it shall be able to place implicit reliance on every statement that counsel make, not merely of present fact, but of future purpose and plan. In no other lVay can a court dispatch business promptly, safely, or with any comfort, and es.pecially is that true in a court like this. Take the various states in which I have to travel, and the multitude of entirely differ.
ent questions and cases that are presented, and the applications that are constantly made to me for orders,-I should never feel safe, or act promptly, or enjoy my. work, unless I felt that I could implicitly depend upon every statement that counsel made to me, both of what has transpired, and of his plans and purposes. I have always done it, and I always expect to do it, and while some have criticised our profession as wholly unreliable, I have never found them so. I be'· lieve, after 21 years of judicial life, I can recall but a single instance, and that in the commencement of my life on the bench, in which I ever knew a counsel deliberately to impose upon me. Of course, such recollections are very pleasant. I think it important that a court should insist upon perfect frankness and the right of implicit reliance, and should shut the door against even a suspicion that such has not been in any case ihe fact. The other point I wish to refer to is this, that while we have in. sisted in this Wabash case all the way through,and do insist in this particular order, that the cognizance of these matters shall be had in , the federal courts, it is not in the slightest degree because of any want of confidence in the state courts. I have been myself too long upon the state bench, and have too profound an admiration for the character and ability of the state judges, ever, in any way, to cast the slightest imputation or reflection npon them. I have .no doubt they are fully as cOIl1petent to do justice, and will do justice, as the fed· eral tribunals; land if the controversy which is raised in this and other branches of the case was a purely independent matter I should be perfectly willing, indeed, I should prefer, that it go to the state courts, so that the federal courts, burdened as they are, might not be troubled with it. But it is not simply a question as to whether the United States Trust Company shall foreclose its mortgage against the mortgagor, the St. Louis, Kansas City & Northern road; but there is involved in the case a question of the apportionment of receivers' certificates and of the burden of floating liabilities upon these various branches. Now, that iii a question which, to my mind, and to the mind of my Brother TREAT, it is very important should be kept within one jurisdiction. Supposing these cases were left in the state courts, and they should decree, the receivers being parties there, that no por. tion of these receivers' certificates was chargeable as a burden on that division, and this court should hold differently: there might be a very unpleasant collision between us; whereas, if they stand in the federal court of Iowa, and the federal court of the Western district of Missouri, both of which tribunals I visit, and where I preside, there will be a singleness of decision. So far as the cases east of the river are concerned, cases which were outside any jurisdiction we possessed, we have sent them all to the federal courts, so that if there sll(i)uld be any difference of opinion between the judges of the federal courts there and here, the cases, in the ordinary course of procedure, can be taken, all of them, to one tribunal, the supreme court of the United
States, and one ruling-one line of decision-settle all the controversies. We have felt in these cases that it was important there l:Jhould be a unity of control, and that whenever disintegration seemed to be necessary the disintegration should be so guarded, and the jurisdiction permitted to attach should be of that kind, that in case there should be any disagreement between the several trial courts the various cases could all be taken finally to one tribunal, and thereb;yany nnseemly or unpleasant collision avoided; and counsel in this particular case had notice of the fact that the court considered it important. It is not at all, I repeat, with the slightest intent to reflect on the state courts, but to avoid any possible collision. I hope that under the present decree there will be no question of the apportionment of the burden of receivers' certificates, floating liabilities, or anything of the kind, but I believe the French have a maxim that the unexpected always happens, and certainly nothing is certain until it is accomplished; and, until this scheme is perfected, there is rio certainty that we may not have to determine how much these various branches respectively must bear of the burden of these receivers' certificates, Mr. Sheldon. Will your honors permit me to say one word in reference to the order you have made. It has been, if you will pardon me for saying so, somewhat of a surprise to us that our position in this matter should have been so misapprehended. The position of the United States Trust Company has been simply enforcing the rights of the beneficiaries under this trust, and it has taken, under the advice of counsel, with the utmost deliberation, the best course to SeCt1re that end, It was the first intention of the trust company, as I explained to your honor in my argument, that this suit should be instituted and prosecuted in the federal court; and it was only under the advice of counsel, and by reason of the doubt created, that suits were first instituted in the state courts and afterwards continued thel'e. I am indebted to your honor for your expression of confidence in the good faith of this transaction. It has certainly been in good faith on our part, and, as evidence of that good faith, we are ,quite willing, in view of your honor's expression of opinion, that these motions to remand may be withdrawn, if your honor is satisfied that the federal court has jnrisdiction. That, to a large extent, removes one of the reasons,-the reason why the state jurisdiction was invoked,-and we will consent that these motions to remand may be withdrawn, and that the causes stand here in these two federal courts. If your honor thinks it desirable or necessary to the jurisdictionof the federal courts, we will file the necessary petitions, (which . were drafted last June and executed, but never filed, though they were in the possession of the solicitors at the places where the circuit court clerks' offices were situated, for the purpose of filing, when telegraphic direction to the contrary was sent to him from New York;) iand I shall also ask your honor, in view of this, and in view. of the
CENTRAL TRUST CO. 11. WABASH, ST. L. & PAC. RY. CO.
confidence which you state you have had in the good faith of coun· sel, to witbdraw that portion of the opinion which speaks of the ne· cessity and value of good faith on the part of counsel. The expression -the mere expression-of it in this connection would seem to be a reflection upon us. Good faith in matters of this sort is something we value so highly that we should prefer tbe entire proceedings to be disposed of and begun anew rather than that such an opinion should be entertained. BREWER, J. I certainly thought I had guarded my language so as not to imply that there was any lack of good faith on your part. The only point I wished to set forth was that the order was made on the strength of the statements of counsel as to the plan they intended to pursue, and that afterwards that plan was chAnged; that was all I meant to say was done by counsel; that the order was made in 'the first instance in reliance on the statement as to the course to be pursued, and that afterwards, without notice to the court, that course was not pursued. I think that is what I said. I did not impute any intent to deceive or any bad faith on the part of counsel. I certainly do not want to cast any reflection upon counsel, but at the same time I am frank to say I think counsel made a grievous mistake, espe· cially after the clear notice given here in open court that the matter of the future forum was matter, in the judgment of the court, of importance, when they changed their plan that they did not come to the court and say: "We do not want to pursue that plan, and still want the order to stand." Mr. Sheldon. It did not occur to us that the mere institution of this action was a matter of particular interest to t!le court, or that. the court was interested with us in securing perfect title through closure proceedings; and in adopting the course which it was deemed best, or seemed best entitled to secure that end, we thought the court was at one with us. The Court. I will see that what I have said is revised before it filed. Mr. Sheldon. And these two motions may be considered as lrawn. Brewer, J. Have the motions been filed? Mr. Sheldon. They have not been filed.
UNITED STATES V. HElLNER
(Oircuit Oourt, 1.
January Hi, 1886.)
MEASURE OF DAMAGES IN ACTION FOR THE CONVERSION OF TIMBER·.
An innocent purcnaser; from a willful trespasser, of timber cut on the public land, is liable for the value of the timber at the date of such purchmle, including the value of all labor and expense which said trespasser had then bestowed upon it
CASE IN JUDGMENT.
H. purchased 50,000 feet of lumber at the mill of E., made from timber willfully cut from the public land by the latter, without the knowledge of H., and hauled the same to Baker City, a distance of 20 miles, at a cost of $5 per thousand, where. he disposed of it at $15 per thousand. Held, that in an action by the United States to recover damages for the conversion of said timber. the true measure thereof was the value of the lumber at the mill.
NEW TRIAL-INTEREST ON VALUE OF PROPERTY CONVERTED.
On the trial it was taken for granted that the lumber was delivered to the defendant at Baker City, and the jury took its value there as the measure of damages; but on a motion for a new trial, it being admit.ted that the defendant paid for hauling the lumber to that place, and no objection being made to the omission to prove that f&ct on the trial, a new trial was granted the defendant. unless the plaintiff would remit the cost of hauling, $250, less $120, the amount of three years' interest on the value of the lumber at the mill, which the plaiBtiff had omitted to claim on the trial.
Action to Recover Damages for Conversion of Timber. James F. Watson. for plaintiff. Lewis L. McArthur, for defendant. DEADY, J. This action was brought January 2, 1884, to recover damages from the defendants for the wrongful taking and cutting into boards of 400,000 feet of logs, belonging to the plaintiff, and wrongfully converting the same to their own use. It is alleged in the complaint that between June 1, 1881, and the commencement of this action, one O. T. Elliott wrongfully cut and removed from section 17, in township 7 S., of range 38 E. of the Wallamet meridian,-the same being then unsurveyed public land,-400,OOO feet of timber, made into saw-logs, of the value of $800, to a steam saw-mill in Baker county, Oregon, with intent to dispose of the same; that the defendants, well knowing the premises, took posse8sion of said sawlogs, then and there being of the value of $1,200, and wrongfully cut the same on said mill into boards, of the value of $4,800, and did then and there convert the same to their own use, to the damage of the plaintiff $4,800. On June 2, 1884, the defendants answered separately, denying, substantially, any knowledge of the allegations of the complaint relative to Elliott's cutting and removing timber from the public land; and admitting that on and since October 1, 1882, they each had an interest in the steam saw-mill situate on or near the section aforesaid, but that about said date it was removed to land belonging to the defendants; and denying that they were in any way interested in the