METROPOLITAN NAT. BANK V. ST. LOUIS DISPATCH CO.
"When any claim or matter pending in any of the executive departments which involves controverted questions of fact, or law," the head of the department may refer them to the court ,of claims. There are many "claims" or "matters" besides money demands" pending" in the various departments. Indeed money demands, except perhaps in the treasury department, constitute but a small fraction of the "claims" or "mattergo" pending in the executive departments. Yet the statute says, "any claim or matter, pending in any of the executive departments." As a general proposition, a hill in equity is rarely filed merely to establish a money demand, without other relief. The amount of money recovered is very seldom, if ever, the sale matter covered by a decree. Yet judgments and decrees, writs of error and appeals form the subject of many of the provisions of the act, clearly indicating, not only that equitable jurisdiction is conferred, but that the claims or matters in controversy are not limited to mere money demands. A casE! strictly analogous,Jones v. U. S., 35 Fed. Rep. ,'j6l,-was decided by DEADY, J., in the circuit court for the district of Oregon in July last, in which he discussed this point with great fullness, and his usual ability, and in which he held, that the word, "claim." as used in the statute, included a claim to land, and upheld the jurisdiction of the court. I can add nothing more to what he then said, and I content myself with referring to the decision in that case, and expressing my concurrence in the views stated by him upon the point. The demurrer must be overruled with leave to answer, and it is so ordered.
METROPOUTAN NAT. BANK'll. ST. LOUIS DISPATCH
Co. ei aI.
(Circuit Court, E. D. Miasouri, E. D. March 22, 1889.)
EQUITY-PJ,EADING-AMENDED BIJ,;J, CONTRADICTING ORIGINAL.
The original bill to foreclose a mortgage on tangible property, a and a share of stock, and two amended llilla, alleged that the tangIble property had been destroyed, and it was therefore held that complainant could obtain no relief in that suit. Held, that leave to file a third amended bill alleging the existence of the tangible property for the purpose of reaching the intangible property should be denied.
BAME--MoTJON TO STRIKE OUT.
Where defendant obje<;ts on an application for leave to file an amended bill, and states that be will present his objection on motion to strike it out, the motion to strike out will be considered 8S if it were an application to file the bill with objections thereto.
In Equity. On motion to strike third amended bill from files. Bill by Metropolitan National Bank against the St. Louis Dispatch Company and others. Motion by Dispatch Company. John M. Dickson and Jay L. Torrey, for complainant. Lee EUis, for defendants. BREWER, J. In this case there is a motion to strike out the third amended bill. When application was made for leave to file this bill the
defendants' counsel objected, and stated that he would 'present his objection by motion to strike it out. So that we think it is fair to consider the matter pending before us as though it were an application to file this bill, with objections thereto. , Perhaps, if leave was given to file an amended bill, and no objection Was made, some other considerations might have force. But, treating it as above stated, it seems to us that this be the rule to govern as applied to the facts in this case. · Th!l bill was one to foreclose a. mortgage. The property covered by the mortgage was certain tangible property, such as type, printingpresses, etc., the good-will of the Dispatch newspaper, and one share in the Associated Press. In all the prior bills the allegation was that the tangible property had long since been used up or destroyed. Andwe held 1 that, such being the case, the: complainant could obtain no relief in this suit. The reasons whiCh compelled this conclusion were fully explained in decisions heretofore filed. The tangible property being gone, there was nothing upon which to decree a foreclosure. Now, this this fact, which has been adjudged a basal amended bill changes type, printing-presses, one, and alleges that that 'tangible etc.-is still inexistence, and in the possession of the principal defendant. Complainant now seeks to find a basis for reaching the other property in the alleged existence of that which it has heretofore claimed had no existence. Ip other words, a basal' fact is now alleged, which heretofore has been denied.' Not only that, but in the course of the argu'ment counsel said he cared nothing for this tangible property; that was not what he WIlS after. Where an amended bill is sought to be filed which is based upon allegations contradicting those in the prior bill, those allegations being of substantial and basal facts, it seems to us the filed. TIle bill is not 'stating court may properly refuse to allow it to new and adp,itional facts; it is not alleging in a fuller or different way facts hitherto averred; it is not an amended bill, but it is a bill contradicting the basis upon which complainant sought to proceed. Motion to strike out will be sustained.
ST. P. &
C. Ry. 00.11.
CITY, ST,J. & C. B. R.Oo.
D. Missouri, St. Joseph Di'Dision. March 11,1889.)
RAILROAD COMPANIES-USE OF OTHER ROAD-L,ONSOLWATION.'
An ordinance of the city of St. Joseph gave the St. J. & C. B. R. Co. the right of way over certain streets to George alley, provided that its roall in the city limit/! should be open to all other railroad companies that should have obtained 'permission of the city. Thereafter the St. J. & C. B.R.eo. consolidated with the M. V, R. Co., forming a new company, the defendant, which built its road from the terminus at George alley. and connected with the :M. V. tracks, making a continuous road the, city. Held, that the