of the BanJter's Daughter lode, ever since have been, aild ,"QQW,are, part andpOl'tliOn"of"the city of HeleDa. county of Lewis and Olarke,' ,and state of Montana,'thellame being an incorporated city; and said premises, and the whole thereof, then did, and ever since have been, and now do, lie within the corporate limits of the said city;, and that these defendants tbedate last aforesRid, ,'8ver8inoo have been, and now are, the ownersalildactualoccupants of tbesurface ground of said premises, and the wholtltJlereof,. an4 have a¢;qaIly had tbeposll8ssion thereof, during all the period last aforesaid." , There is no claim in these allegations that the city has. acquired any title to said premises, or taken any steps to acquire the same through its officers. It is not claimed that the same has been reserved by any order oftha president Qf the United States., There is no claim that it has been uBuallyoccupiedas a place of business, or in fact any allegation in the above that would show that it might 110t be taken as a mining clahn.ifvalul\.blefor tb,eminerala therein contained. This objection is therefore gQod, and this allegation should be stricken from the answer.
, , i
,. One of sb: legatees entItled under' the 'lV,ill f.O equal shares in the residuary estate '" lfI,led ,a.>blll, against her' colegatees to compel thEllllto pay to the exeoutor $5,877.88, whillh by 'Vi1)Q8 testatrix. The circuit dismissed the 'bUlon' the merits, and,plaintiff ha.vtng appealed, the supreme court dismissed holding·that th.e interest 'Of 'plaintiff was only one sixthotthat sum, to thl;tt court jurisdiction. Held, that this decision was , also deoisive against the inl1sdiction of the circuit court, and on a bill of review the original delll'll8llb.ould b!j reversed, and the :bill dismissed for want of jurisdiction, · without prejudice; but is ,not entltllld, to have the proceedings erase(J, from the docket. ' ,., ' I. 'SAME-COSTS. In thus its dillmiflling the bill, the circuit court had no power to restitution of tqE;lPOsts of the appeal, the same having been paid by plaintiff in' pursuance of the mandate 'of the snpreme court. . a'SAME. ' ,i , Nor. uuder the the .circuit court order restitution of costs ,.paid by plaintiff und.er its original decree disIDissing the bill on the merits, for , plaintiff was in fault in Invoking a jurisdiction to which she had no right to resort; , and for the same reMon the,QOsta of the bill of ,review should not be taxed in her favor. . .
In Equity. ,. On motion' for judgment on a bill ofreview. original p!oceedingwas a suit brought by Martha A. Miller; as legatee under the will of Mrs, Irene Clark, against five other legatees, who were entitled with to equal shares in estate. The purpose of the bill was to compel defend alltsto pay to the executor $5,377.83, which inter vivo8 from the testatrix. The courtren-
dered a de.cree dismissiug the cause on the meritl3. 40 Fed. Rep. 15. Complainant appealed to the supreme court, which dismissed the appeal, holding that, as. plaintiff's interest in the sum in litigation was only one sixth thereof, pr $896.301, the amount was insufficient to confer jurisdiction. 138 U. S. 225, 11 Sup. Ct. Rep. 300. The mandate of the supreme court required complainant to pay the costs of appeal. Thereafter complainant brought this bill of review, praying that the decree of the circuit court should be set aside, and a decree entered dismissing the cause for want of jurisdiction. Defendants specially demurred to this bill, on the ground it did not show that the costs had been paid in pursuance of the mandate, or give any excuse for their nonpayment. The court (SHIPMAN, J. ) overruled the demurrer, but held that the costs must be paid before complainant was entitled to a hearing on the bill of review. 47 Fed. Rep. 850. No order was made or asked fixing a time within which the costs must be paid, but they were paid and accepted by defendant's counsel over two months thereafter, and the court quently held that this was not such delay as would debar .complainant from filing a supplemental bill alleging such payment. 49 Fed. Rep. 695. The hearing is now on a motion for judgment on the bill ofreview, also asking that the costs of the original suit paid by her in this court and in the su preme court be ordered to be refunded to her, and that the costs of the hill ofreview be taxed in her favor. Simeon E. Baldwin, for plaintiff. W. B. Stoddard, for defendants. District Judge. This is a motion for judgment on complainant's bill of review, praying for a reversal of the decree in the inal cause, and that said decree be declared void,. and all therein taken from the files of this court, and for other relief. 'Defendants demurred to the bill of review, and the demurrer was overruled. The original case is reported in Miller v. Clark, 40 Fed. Rep. 15. Defendants object to a reversal of the decree. They claim that the circp.it court has jurisdiction oCthe cause, and they therefore ask thatthe bill of review be dismissed. Itseems to me that the opinion of the supreme court of the United States, dismissing the appeal in the original cause on the ground that it had no jurisdiction of the appeal, is decisive as to the jurisdiction of this court. The court there finds that the interest of the plaintiff in the amount in dispute is only $896. 30!. Miller v. Clark, 138 U. S. 225, 11 Sup. Ct. Rep. 300. Furthermore, all the questions, with perhaps a single exception, discussed upon this motion, appear to have been raised on the hearing of the demurrer to the bill of review. The decision of Judge SHIPMAN overruling said demurrer holds that the reasoning of the supreme court, deciding that it had no jurisdiction, is applicable to this case, and is conclusive on that point. Complainimt also asks that defendants be ordered to refund to her the costsofthe original action paid by her in this court, and in the supreme court of the United States, and that the costs of the bill of review be taxed in her favor. To award restitution of the costs in the supreme
FEDERA:t 'REPORTER,' vol.
courtw'Juld be pw;dtjc'!\l' of the jUdgrrient of that court. and a nullifieation of itslnaqda,ttf . Bee' Miller'v;Clark,,47 Fed. Rep. 85t. In Claiming 'restitu,tio'ni , 9f' the costs paid under' the former decree in this court, cbmplainatit' showof'authority. ,It may 'now be considered,. as settled circuit court has the power. in,a proper case, to order a reatitutionof m6hey paid under a decree which it had not the jurisdiction: 'to v·.Brock, 139 U. S, 216,11 Sup. Ct. Rep. 523.' cases 'brought originally, to the drcuit, court are dismissed for wllnt, of jurisdiction in no costs are allowed in the circuit court. 560; Pentlarge v. Kirby, 20 Fed. Rep. 898., ' With the light nowaffofded by the decision of thesbpreme courtdismissing :is seeQ that this cas6should never have been broughtto thacircuit court,andshould have been dismissed at the outset'for'want ofjutisdiction , lind therefore without costs to either 'party. It .was, 'in 'fa:ct, .tHed and dismissed 'on the merits, .and costs were awarde$l' the defenqiints; and,except for the want of jurisdiction. that decision was presumably and correct. Before that de.ciBid.rI reviewed8.J:).d set aside, complainant was obliged to pay the costs sOa,warded. the costs in the supreme court., . Miller v. Olar", '850.. It seems just that defendants should retain these costs.. TM supreme court gives the defendants costs 'in such cases wherever ittliinks it has the power t9do so. Winche8ter v. Jackson, 3 Oranch, 514; Asse8801' V. Osborne8, 9 Wall.' 567; Montaletv. Murray, 4 Oranch, 46; Railroad 0:>. v. Swan, 111 U. S. 379, 4 Sup. Ot. Rep. 510. The latter caae ,wa,s one of an improper removal from a state court to a circuit court. By aspetiial statute the circuitc6urt is directed, in such cases, to mak,e such order as to costs as; shall be just. The defendant obtained the',femoval of the case to the circuit court. Rnd, after being defeated on atrial of the merits, obtained by writ of error a reversal of judgment on the ground that the circuit court had no jurisdiction. The court say: ' . " "It is clear tbat the plaintiffs in err'lr,: caused the removal of the case from the state court, ought to pay the costs mcurred in tbe circuit coprt. Although in atormM and nominal sense the plaintiffs in error prevail in obtaining a reversal the judgment them. the cause of tbat reversal is their own fault in invoking a jurisdiction to which they had norigbtto resort,anll;its effect is, to defeat the entire proceeding which they In a true and proper sense. the plaintiffs in originated and error are tbe losing, and,nq.ttb,epreyailing. party." . In the present case the complainant selected this court as the tribunal to determine the question orher right to this fund. The defendants were forced to c01ll6. into. thiscpul'taga,il1st their objection, raised by a "demurrer, and 'to contest ll1eclaill1softbe complainant before this court. N?w, complainant, in thetribunalof her choice. Iseeks to hll.ve .thes'e prodee'd1rgs, setaside,and to prosecute her claims before another ,tribunaL. The u'nderlying principle ,by which the question of costs is to be thatthey shall be taxed in favor of . the prevailing party.'In the cases of restitution which have beencited
EELLS t1; ST. LOUIS, K. &I: N. W. RY. CO.
there appears to have always been an errc;meous judgment for a substantial sum. 'P;ti, court ought not to order the costs returned unless it is absolutely compelled to do so by strictlaw, and I think it is not. The 8fl.mereasons apply to the claim for costs of the bill of review. Complainant claims ,that the original Cause should be- erased from the cannot erase the cause from docket. Defendants claim that the docket, because of the mandate of the supreme ,court directing execution for costs, and cite the case of Bridge 00. v. Stewart, p How. 413, in support of this claim. In Iron Co. v, Stone, 121 U. S. 631, 7 Sup. Ct. Rep. 1010, the circuit court had, rendered a decree dismissing the bill on ita merits. ,The supreme cou,rt,on appeal, held that the circuit court had no jurisdiction, and awarded costs in the supreme court. The court, seem to circumstances, so far as regards the case in the have been substantially the same as in the present case, and the judgment ordered in that case fippears to be proper here. The motion for writ of restitution and ·for costs is denied. The decree against of this ,court in the original action brought by this these defendants is reversed, and the bill in that action is dismissed for want of jurisdiction, and without prejudice.
ST. LoUIS, K. & N. W. RY.Co., (KELLY, Intervener.)
(otrcuit oourt, S. D. Iowa, E. D.)
CABBIlllRI OJ' FREIGHT VALUATION.
LIABILITY lI'OR NEGLIGENOIll- LIMITATION BY CONTRACT-
SAMIlI-FOLLOWING STATE DECISIONS.
In Equity. Bill by Dan P. Eells, trustee, etc., against the St. Louis, Keokuk & Northwestern Railway Company. Intervening petition by Isaao Kelly against the reoeiver, W. W. Baldwin, torecoverthevalueofahorse alleged to have been killed by the receiver's negligence while in course of transportation. Heard on exceptions to the master's report. Overruled. W. J. Roberts, for intervener. H. H. Trimble and Palmer Trimble, for receiver.
WOOLSON, District Judge. Pending the proceedings in the original action, Isaac Kelly, by leave of the court, filed his petition of inter-