CARR V. :nUll:.

209

CARR ". :FIFE

f!t al.

(Cfrtmft Court, D. Washington, W. D. February 28,1891.)

Where the jurisdiction of a circuit court is challenged on the ground that the record does not show the value of the property in controversy to exceed $2,000, that particular point being made for tbe first time after a final hearing and decree, the prl>perty being in fact of sufficient value, the court will n()t deny its jurisdiction, but will allow the omission in the record to be supplied by the filing nunc pro tunc of a proper affidavit. (8IIZlabu8 btl the Oourt.)

AMOUNT-AMENDMENT OIl' RECORD.

In Equity. Motion to remand. ThomCUJ Carroll and John Arthur, for plaintiff. qal'If-Bh,a Par8lm8' for defendants.
HA;NFORP,;;f. The plaintiff has heretofore moved to remand this cause to thlj) superioJ,' court of Pierce county, on the ground that it is not a case

withip jurisdiction of this court. That motion was, after full argumeAt, and the reasons therefor are given in my opinion upon the merits,now on file. 44 Fed. Rep. 713. And now, after the final hearing and in the case, the: plaintiff has filed a second motion to remand, for the the record does not show affirmatively that the value of the property in controversy is sufficient to bring the case within the risdicti.qn of court,-a point not suggested by the first motion. It is that the value is 'not in fact sufficient. On the contrary, is, and was at the time ,the: suit was commenced, worth many tim.es $2;000, amt that fll,.ct h!1s often been melltioned and urged upon the at,. tention of the court by counsel on both sides; but it is said that there is an omission in the record of any showing as to the value. The motion to remand will have to be denied. It cannot be remanded-that is, sent back-to the superior court of Pierce county, for the reason that it did not come by removal from that court. I have already decided that the superior court never acquired jurisdiction of this case, and of course it cannot be remanded to the territorial court in which it was begun, for that court has ceased to be. Besides, there is no lack of jurisdiction in this court; there is only an omission in the record of a fact essential to the JurisdictiCln; and the proper thing to do is ,not to destroy any rights. but to supply the omission, and in denying the motion I will makeandorder allowing that to be done. On the day the hearing commenced it was definitely admitted by counsel that the land was of sufficient value, and it was agreed that an affidavit showing the value should be filed, and be considered as then filed, and on that understanding the trial was proceeded with. The failure to actually place the affidavit on file has been through inadvertence; therefore, I will order thaI. ,the proper affidavit, wh.en made and be fi,led nunc prQ a8 of the first day 'of the tnal,:and that the motlOn to remand· be de;.u,ed v.45F,1;1oA---14 '

210

FEDERAx. lUi:POR'l'ER"vol.

45.

NON-MAGNETIC WATCH CO.' OF AURICA :etaZ. 'V. ASSOCIATION HORLOGERE SUISSE OF GENEVA et al. (Oircltit Oourt, S. D. New York.

February 11, 1891.)

DECREE.

BOVle. Ol!' PRdml:SS;"'CoRl'OlU,TIONB-'-SETTiNG A.stt>lIi

Where 'at the'time the sUbprena was'served, the bill failed ,'to show jurisdiction of ,defendant and the marshal'll return shows 8el'V'ice only on one B., who was separa,tely nallied' liS a defendant, a decree pro OO'll/e8BO against the 001'poration will be set aside.:, ,',' .,'" ,

In Equity. Brie8en Knauth, for complainants. John H. KUchen, for defen4 flnts., .
LACOMBE, Circuit Judge. When the subprenato' appear and answer was serv,e<l, the, bill.of complaint, failed sh,o)V of the defendiilit the AssQclatioI1' Horlogere '$\iisse; and,the marshal's tetnrlri'showsservicednly updti ·Louis 'E. separately nallied 'iJ1"adefendant;,andnone upon'tpe'corp6ration; as was to be expected; in' 'yiawaf.thefatlt that, 'at, were -expect-ing'to bring it iil by' service by section' 8' of the act of the rebord,as it thenwa.s,(thifbilliandmarshal's return,) the; was entitled to, !,emain quiescent.;" The subsequent plaint,' alleging that the' defendant corporation was engated'in business' did change t96sitUation. Whether the -defendant or not ishtit-to be determined by the state of tbe'C/l:Se-asitwas when the marshal's 'return was made. The decree pro tXmJesio 'against the ASsociation' Horlogare Suisse is' therefore vacated.' ,'.','
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Co8'l's-CoPIBS 01' RECORDS.

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FebrullrY 12, 1891.J

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Under ;Rev. U.. which prov:ldeB th$t "lawful fees forexempUll.eaUonB 'and copies and papers obtained for use ontrial\1 " may be taxell as oosts, a successful party canU9t'tax as costs certified copies of tbe,muniments'ofhistitle, since he must beprE1sumed, to have such papers lD hiS. but he may tax oosts of suits 'on which he ,relies merely to defeat his adversar,y'8
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In Equity. On motion ,to retax costa. SullJivan ct Whiyield" for, complainants..

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j. The questions. now:. fQIr ,d.ecision. arise. nponcomplainants' motion to retax the costs lIt this cause by disallowing the. itew» for
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