DAVIS 11·.KANSAS CI'rf,S. & M. R.
CITY, S. & M. R. Co.
w: D. T6nneuee.
JURISDICTION-AMoUNT m CONTaOVEBSy-ACT OF MARCH 8,1887-AMENDMEN'l' OF THE DECLARA1'roN. . In an action fQrdamages to property by a railroad company occupying .. street, the ad d4mnum of the writ and declaration was laid at $1.500 in ignorance of the new act of congress of March 8, 1887. increasing the minimum limit of the jurisdiction to $2,000; but, on motion to dismiss, the plaintiff asked leave to amenet by increasing the ad darTJ,num. Held,tb.at the amendment should be allQwe!i. since it'did not satisfactorily appear from the nature of the case, alid'the circumstances shown, that the damages were not in fact larger than the original It is only when the court can plainly see that its jurisdiotion is being fraudulently invoked that it will deny the amendment or the cause. . .
O. H.Trimble, (J. M. Greer, with him,) for defendant.
HAMMOND, J. The motion to dismiss for want of jurisdiction is based on ,the fact that the ad d(L'n'IInqm in the wtit and declaration is less than $2,000, the amount fb:edas the minimum limit of our jurisdiction by the act of March 3, 1887 373, (24 St. 552,) the suit having been commenced a days after that act was passed, evideI\tly in ignorance. of the changes made by The moves to amend the writ @d declarationbyjncreasing ad damnum to $2,500, but this motion the d,l!fendant resists,on the ground that it is manifestly made to give the court a fictitious jurisdiction. , By the Revised Statutes, (se,ctions 948 and 954,) thl.'l power and duty of the courts to allow amendments most liberally has been longestablished, and no practice is more generous in that regard than that of our federal courts. In one case, the ad damnum was amended, after verdict, to include ,damages given by the jury I which were larger than the sum claimed by the writ and declaration. Elting v.CkumpbeU, 5 BIatchf.18S. If the factitious circmpstance of the passing of this new act ofcongress a few days before the suit ,was brought did not exist.in this case, no resistance tothis motion would be thought of by the defendant; and the position that the plaintiff should show, by affidavit or other proof, that he had reasonable grounds. for a larger estimate of his damages than he made when the suit was brought, would not be taken, for it is certain that neither in the state practice, nor our own, has that ever peen required on a motion to amend the ad. damnum in a case. where the cause of action was like this. . The plaintiff has a right to claim what daJ;Ilages he pleases, either when he institntes his suit, orafterwards by amendment,and I cannot think that this adventitious circumstance of a change in the aJIlount of our jurisdiction can at all influence that right. There is a strong suspicion, no doubt, that he wishes make the change to requirementS. qf the new act of and that may be the fact: yet we not that. it is a fact, and in the very nature of the case
w. M.Randolph, for plaintiff.
it may be that his damages are really larger than $2,000, instead of being only $1,500,as he at first laid tlient'in his writ. We cannot cially know that he is acting fraudulently to give us jurisdiction, rather than that he is acting honestly to correot a former error of judgment, and is what the contention against the motion means. Indeed, where Our jurisdiction depends on the amount in dispute, and theca:use of action is one in which, from its nature, the plaintiff is at libertyto lay what damages he pleases, as in libel, slander, or other. ries topersop br property, I am to say that he may notdeliberately overestimate them in order to give a particular court jurisdiction. It has been held that one may deliberately move into another state, and acquire a diverse citizenship,:in order to give the United States courts jurisdiction of his cause of action; and I have heard, when at the bar, one eminent circuit judge, now deceased, say from the b'enchthatsuch conduct might be "an exhibition of both good taste and good judgment" by the party to a suit. And so it might be, if the party's conduct were reversed to give a state court jurisdiction. Rightfully, he has his choice. These courts cannot, at least, treat it as conclusive evidence of a fraudulent intent for a plaintiff to increase his estimate of the damages to his person or property a few hundred dollars, that he may invoke their jurisdiction, where the amoul)t that a jury may give is so uncertain, and the estimate so entirely within his own control. The Revised Statutes, by section- 968,' strangely seems not to have been conformed to the new act of cohgress, provide' a remedy against any overestimate by the denial of costs where the recovery is less than $50'0. I do not see that the courts have power to impose any additional penalties or restrictions by refusing amendments in a case like this. The cases of Bowman v. Railroad Co., 115 U. S.611, 6 Sup. Ct. Rep. 192, and Hartog v. Memory, 116U. S. 588, 6 Sup. Ct. Rep. 521, (cited by defendant's counsel,) have no application here. The first was a suit for damages against a common carrier for refusing to carry 1,000 kegs of beer, and the damages, necessarily limited to the value of the beer, were at first stated to be $1,200 in the writ and declaration; and froni the nature of the cause of action,and the facts on which it was based, appearing in the case, it was apparent that the increase by the amendment was colorable, and that the real amount in dispute was lese than the jurisdiction. The second only establishes a well-recognized rule that courts will not· allow their jurisdiction to be collusiye1y imposed upon, and will direct an inquiry into the facts. So, in Lee v. Wat8On, 1 Wall. 337, it appeared, after trial as well as before, that the amendment to the declaration claimed more th'an the actual amount in dispute, and was therefore colorable; for it is well settled by these and all the cases that where such fact appears the court has no jurisdiction. The trouble here is that no such showing is made. It is an action for damages to the .plaintiff's property for laying a railroad track in the street upou which the property is situated. The measure of damages, as we hold in sin'lilarcases, is the difference in value between the property
NORTON "'. EUROPEAN lit N. A. RY.
with the ohatructions to plaintiff's right of access to his property, and wi.thout the obstructions. The declaration describes the lot by metes and bounds, and its situation in the city of Memphis, but nothing in the averments or elsewhere shows the value of the lot or anything from which it may be fairly inferred or by judicial knowledge fairly determined; nor does any fact appear to show the extent of the injury except alone the original claim thatit was the sum of $1,500. On an application to amend this averment, we are asked to hold the plaintiff to that claim, in order to defeat the jurisdiction. If we could see conclusively from the facts showing the cause of action that the damages sustained are less than $2,000, or if we could fairly infer from the original claim in the writ and declaration that they are less, we should refuse this amend. ment, no doubt. But it certainly does not conclusively appear that the damages are less, and they may be more; nor is it a fair inference from the circumstances that the plaintiff's original estimate was correct, and that it should preclude him from claiming that the damages are more. The difference between the amount of$] ,500, which he originally claimed, and the limit of the jurisdiction, is only $500; and in a case of damages to property, like this in controversy, that small sum does not fairly indicate a fraud upon the jurisdiction such as appeared in the adjudicated cases already referred to, and which might be considerably increased by other citations. None of the cases go as far as we are asked to go here in refusing an amendment which is, to say the most of it, suspicious only under circumstances quite extraneous to the plaintiff's case, and not otherwise suspicious at all. The motion to amend is allowed, and the motion to dismiss for want of jurisdiction is disallowed.
& N. A. Ry. Rnd others.
(Oireuit Oourt, D. Maine. November 8,1887.)
COURTS-FEDERAL JURISDICTION-CITIZENSHIP-REAL PARTIES IN INTEREST.
F. P., a citizen of Maine, being involved in litigation with a railroad corporation of that state, got control of a large number of its second mortgage bonds by agreeing with the holders to stand the expense of all litigation necessary for their collection, half of what was realized to go to the holders, and, if nothing came of the matter, the bonds to be returned. N., a Massachusetts lawyer, engaged to carryon the suit in his own name on a contingent fee of 50 per cent. if a certain number of the bonds were secured and assigned to him in form, out and out. but really as collateral. F. P. negotiated the purchase of the small number required to make up the necessary amount in the name of his brother, E. P., also a citizen of Massachusetts. The bonds were then all transferred to E. P. absolutely, and he and F. P. closed the indicated arrangement with N. The suit, which was a bill to redeem from the foreclosure of the first mortgage, was brought in Maine in No's name, and E. P. subsequently intervened. Pending the suit, E. P., with the consent of his brother, who had in the mean time sold some of the bonds, assumed allliability for future expenses, and settled with N. by a bona fide transfer of part of the bonds. Held. that F. P. was the real party in interest, the transfers