lUJIHUA ·
L.
:a.
<lOBP. tI. BOSTON. L.
:a. con. CoRP.
929
NASHUA
&: L. R.
CoRP. tI. BOSTON
(CXreuit Court of Appeals, First Circuit. September 6, 1899.)
No. 26.
L
APPB.u...-DEOISION-LAW OJ' TIIlIl CASB.
Where the supreme court decides that the circuit court, has jurisdlctlotl of a catllM\ and remands the same for the taking of an account, the circuit court ot appeala 0U0 not, on a subsequent appeal, reopen the question of jUrisdiction. 'nlat the circuit court had no jurisdiction ot a cause is no ground for dismissing an appeal for want of jUrisdiction in the appellate court; the proper remedy ilia reversal of the judgment. OF TRIAL CoURT.
..
S.
Where the supreme court, after afIl.rming the jurisdiction of the circuit court, No mands the cause, and directs the taking of an account, but without in any way passing upon the amount to be found due, the final decree of the circuit court, aBCl>rtaining such amount, is in no sense a mere execution of the judgment and mandate of the supreme court so that the same can be reviewed by mandamus. The proper me'hod of review is by a new appeal; and where the new decree is rendered after July,)., 189..1J and the cause does not fall within any of the provisions of section II of the _ of Jnarch 8, 1891, such appeal must be to the circult courtot appeala. SllIs-MOTIONS TO DISMISS.
ApPEAL-CIRCUIT CoURT OJ' APPEALS.
4.
After an appellee has filed one motion to dlsmi811 the appeal. he has no right too file a second without leave of the court; and suoh leave should not be granted on formal grounds only. ted by directions of appellant's attorney is Dot necessarily a ground for dismissing
II. SllIB-DIlFEOTIVB TRAl'lSORIPT.,.-DISMISSAL.
The fact that the transcript shows that certain portions of the record were omit-
the apJlea)., for the appellee may suggest a diminution of the record, and ask for a
certiorari.
In Equity. Bill by the Nashua & Lowell Railroad Corporation against the Boston & Lowell Railroad Corporation for an accounting. Decree for complainnnt for 829,616.41, and interest amounting to $3,363.32. Complainant appeals from the part of the decree relating to interest. Motion to dismiss the appeal denied. Francis A.BTooks, for appellant. JOBiah H. BtmWn, Jr., for appellee. Before GRAY, Circuit Justice, PUTNAM, Circuit Judge, and WEBB, District Judge. GRAY, Circuit Justice. This 'Was a suit in equity, brought in the circuit court for the district of Massachusetts, by a corporation established by the laws of New Hampshire and also by the laws of Massachusetts, against a corporation established by the laws of Massachusetts, upon a contract in writing concerning the business of the two roads. The circuit court held that it had jurisdiction of the suit, but, at a hearing upon pleadings and proofs, entered a final decree dismissing the bill. The plaintiff appealed to the supreme. court of the United States, which held that the circuit court had jurisdiction of the case, and that the plaintiff was entitled to an accounting by the defendant for 80 much of the net earnings of the joint management of the two roads 81 had been appropriated to the payment to the defendant of sums expended by it in the purchase of stock in two other railroad corporations, v.51F.no.14-59
1J
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and to 8 decree for the payment of the sum found due to the plaintiff upon such aJcpounting" 136,. ..,3Q6, 10 SuP!- Qt. ,RrP: 1004. The sapreme court,therEi(ore, on May 19, 1890,' adjudge<lthat the decree of witbcosts, at;Ld, ,C8\lse be ramandedfor further proceedings in conformity with its opinion, and sent down a mandate accordingly. The transcript of record before us, contains copies of tbe pleadings, dismi'S'$mgthe supreme opinion of tha:t;cQurt.'(o\lihting, howevl;lr,soIDucll thereof as related to jurisdiction of the circuitcourt,)and the mandate; aD or'Q(ra,ui t J., onJ referring tbe case to a masterto state the account in accordance,witbtbe opinion to the a motIon by tbedef.endant to recommIt, the report to the March 16" denyingth6 (49 Fed. Rep.1774;) a final derecover, as its share ot net earnipgs"approprlatedas aforesaId, ,the.5uD;I of ,$2.9,676.41, tbat sum.fl'.qm 1890, to thedltteof thl'l decree, tbat the ph,tintiffwas not entitled to recover any further sum; the plaintiff's appeal from 50 much of that thattb,ejHliilltiff was entitled:torecovetonly $3\868.8-2,f4Irtintereston,th9sum fouuddue; anda corresponding assign-, fhltnt'!of The Herk of the ci1'cliit court hns'cel'tified' that the transcript is a true copy of the record, except certain portions omitted by! cj.irectili>ucif ·;the .pIliintiff's counsel. On 1892, to dismiss the appea1"upon theseiwQ:arounds: (l):.That tbe plmntitr WAs a citizen of the state of wMchthe a1!O was a citizen, and therefore the circuit court had no jurisdictionoftbe case, and this court bad no jurisdiction of the appeal. t2) That the decree appl.'aled from made in obedien<;:e to and performance oCthe mandate.of the supreme court. toJhe,pltintiff, .this moti?n to dismisswas,:set down to be heard oil June 30th. At the hearing, the defendant filed motion to dismiss the appeal, assigning, as additional grounds, tbat the appeal was Dot (,ronhthedeCl'fl$'ofthecirc\lit :coutt, ,but from a part only of that decree;.Mld ,that the.t.r8iPsctipttransmitted to this court was a copy of but a.pal't of,thcl"ecQtd below· . for the original motion to dismiss is untenable,fQrtworeastilns: F'ir$b. The qUellHon of.the jurisdiptiollof the circuit court,has been heard and :determiMd:by .the supreme court, and cannot thi.a;oose.· Clark v.,Keith, 106U.S,;464, 1 Sup. Ct. 668; Second. lUhe queRtibllof the jurisdictionoC. tbe circ11.it court were still open to diapute', ,it would:be a question to. be ;deoided on ap.penli;and.; if the circuit Jx>Urt hadon<!> jluisdiction, that would.. be no jJl1oundfOll/dhllnissingi,the l'lppeal,for want of juriscliction in this court, but would tequirea;reversal,oftbejudgment below for want of jurisdieJon in the. court which rendered it. Ganter,y. Co., 2 Pet. 554;,;
NASHUA &"L. R. 'cORP. 'lJ. BOSTON &L. R. CORP. A88e.98O!'8V.
931
OSborlle8,9 WalL'p67,575;Railway ,v. Swan, 111 11. S. 37.9, 4 Sup. Ct. 510; Whittemore v. Bank, 134 U. S. 527, 10 Sup. Ct. Rep. 592. .' . . .' The second ground of the<original motion.;isequnlly untenable. The supreme court, after deciding that the circuit court had jurisdiction, and that the decree of that court dismissing the bill must be reversed because the plaintiff was entitled to an account, and to payment of the sum thereupon found to be due, remanded the case to the circuit court for further proceedings. The supreme court in no wnypassed upon the amount to be found due, either principal or interest, but lett that to be determined in the court- below, as in the ordinary case of granting a new trial. The last decree of the drcuit court did not touch any matter adjudged by the supreme court or covered by its n:Hmdate, and was in no sense a mere' execution or performance of the judgment and rriundate of the supreme court. It could not, therefore, be reviewed by writ ofmallcUtmus from that court, but only bya new appeal. Hinckley v. Marron, 103 U. S. 764. The decree now in question having been rendered since July 1, 1891, when the act of March 3, 1891, c. 517, took full effect, and not coming within the special provisions of section 5 of that act, but falling under the general provision of section 6, the present appeal is rightly taken to this court: 26 St. 827, 828, 1115; McLish v. Raff, 141 U. S. 661, 12 Sup·. Ct. Rep. 118; Bank v. Peters, 144 U. S. 570, 12 Sup. Ct. Rep. 767. ' After one: motion to dismiss had been filed and set down for hearing, to dismiss, without theappeUee had no right to file a secona leave of the court; and such leave should not be granted upon.formal grounds only. If the appeal is wholly insufficient to sustain the jurisdiction of this court, the court may, of its own motion, take notice of the insufficiency at the hearing on the merits. II the transcri pt of record is imperfect, the appellee might have suggested 8 diminution of the record,anll asked for a. certiornri. It would doubtless have been more regular for the appellant to file in this court 8 complete transcript, if not of the whole n'cord of the circuit court, yet of so much thereof, at least, as set forth the entire opinion and mandate of the supreme court, and all the subsequent proceedings in the court below. But the imperfections of the transcript in this respect were not made a ground of the original motion to dismiss; nor does the supplemental motion point out what, if any, of the omitted parts are material. The whole opinion of the supreme court is publi8hed in the official reports, and there is no controversy as to its scope. A copy of an opinion of Cor,T, J., file,l February 24,1891, 1 (omitted in the transcript,) proceeding upon the same ground 1 The opinion referr.ed to was as follows: . "In view of the nature of the contract between the Plaintiff and defendant corporations, and of the decision of the supreme court upon appea.\., and of the rules of law governing the allowance of interest, I think it would be inequitable to permit the plaintiff to recover interest upon the basis claimed. I am of opinion. therefore, that the plaintiff is entitled to a decree for $26,124, with interest from the date of the mandate; and a decree may be drawn accordingly. The supreme court having already settled the question of jurisdiction, I think the defendant's motion raising the 'same question impl'(lper. and I shall therefore direct that this motion be withdrawn from the files of the court. It
FEDERAL
vol. 51.
as opiniqn after the return of the, master's report, has supplied by tbeappellant by direction of this court; and the appeal iSJrom so much of the final decree as the appellant complains of.' Under these circwnstanws, b9th motions,to dismiss .the appeal must be denied.
FLoRIDA
SOUTHERN, R. Co.
fl.
LoRING.
(04rcuU COU11 oJ
C-£t'C'I./-U. June 20,
No. 99. L BnO'\'JBlU'-'Jltp.JlTO In no length ot chain ot title by deeds which does not reach back to the 10vel'elgnty:Ot'the.soil, and which tails to show possession by one at the granton, is in'itselt to constitut.e prtmafacte evidence ot title which would require detendant,m'posse\lsion' to detend,hispossession; and the payment ot, taxes by plaintiff ion tile' ,land ·,conveyed by iUch deeda'does not, as a matter ot law, show posl\el\siou.., , '! I. S.ulB-PRovgIOB, OJ' COURT A.ND OJ' Thetri&1 'ollgellbould construe deeds and other written Instruments given in ev!and instruot the jl1ry as to their le$&1 etre9t, ,and as to hQW tar reci1j&Js in su,c:ih instruments are binding upon the and privies thereto; but, If lJUoh reol'ti&lll can be used at all against strangers, they must be submitted with to thejv.ryl torce is not to be by the ju<J,ge simply because they are part or a deed. L B.ulE-EVIDBNOB OJ' POSSESSION-INSTRUCTIONS. Where.1nrejeotment, Itibe'1and sued tor Consists ot two blocks in: a populous City, and it isebown that J;I18Uypersonshold ,possession under grant,8 :tromplaintifl's gratltors, as' eVidence tends to show that the grantors must have' had possesin the trial judge to withdraw this issue ot taot:trom:the jury. ' .. ,l(NOWLB:\>GE. "" " ' , '(Jnder the,' Flonda statuUl,'relatbig' to, adverse possessiou 'byolie Claiming title not founded upoa a written instrument ora judgment,the question ot suoh possession is notJ.atJ;ected !Jieadvers9 , ,,A,nd where a railroad laId Its track op'lllond under a olw.m of right more than seven years before thebeginiD'I1ig:6f 8; snit 'in' ejectillent-for suob land, and open).y used the track for tAe dailY! passin« 01 its!l';l1oios without oonsellt of the owners,suoh use i,sadverse, and the oomllany lias aequired 1;be permanent right to cmtinue the same. o ··
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In Errot 'to" the, Circuit, Court of 'the United States 'f9r the Northern District of FIoridn. ' Action in ejectment by Caleb W. Loring against the Florida Southern Railroad Company. Verdict and judgment for plaintiff. Defendant brings error. John for plairitifHn error. H. Bisbee, for defendaritin error: , Before MCCORMICK, Circuit Judge, and LoCKE and, BtLLINGs, District Judges. , , ' , MCCORMloB:, Circuit Judge. This is an action of.ejectment. Declaration form. ' The plea is not guilty, which puts in issl1Q the, title to the land in controversy. The action was brought by defendant iX)errC)r in the ,circuit court for the northern district of Florida, and trialfuLd"in.tbllrt court, January 6,1892, the district judge Hon. Charles
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