186
FEDERAL REI>(jRT EIt,
vol. 40.
Smythe for plaintiff.' , JuUttA H. H&gward and J08. W. Barnwell, for defendants. 81MON'tON, J. The action in each of' these cases began in the circuit court or South Carolina for the cOunty of Greenville. "The summons in each was issued, and ,complaint filed, on 31st July, 1889. On 17th Augusttheteafter, a petition for removal into this court,with a proper bond; was filed by defendant; the ground for removal being diversity of citizenship,and the amount in controversy being over $2,000 principal. On 4th October, 1889, the first term .of the state circuit court next after filing the petition, an order was passed by that court, on motion of the attorney fordefendaIit, directing the record in each case to be sent here. The records were filed with the clerk of this court on the 18th of October, 1889. Thereupon: the plaintiff's attorney, no answer or demurrer having been filed, gave notice the rules-day next thereafter, 4th November,he the' clerk for judgment by default, nnder our rule 12. The ,defendant comes in with affidavit, and after notice, craving ioooch case "leave.to answer in this action, and for such other reliefas may he propel'." , When 11 proper petition and bond. are filed in the state court, the risdiction of tllis' cOurt is the rightful of the state court is at an end, an<ino further, proceedings can properly be had there, unless, in some form 1 its jnrisdictionisrestored. Railroad GJ. v. Mississippi,102U. t:;.136j In.mranceCo.v.Dunn, 19 Wall. 214; Railroad 00. v. Koontz,104U.S;14. When the c8.secomes here, this court takes it in the same oondition {twas when it left the state court. The removal does not vacate or change what has been done, but simply carries the suit to the circuit court for further proceedings. Duncan v. Gegan, 101 U; S. 812. It is necessary, hOwever, 'that a copy of the record from the state court be entered in this court, ioorder to enable it to proceed with the cause, although the jurisdiction does not depend on this entry. Fisk v.Rail,. road Co., 6 Blatchf. 362; Railroad GJ. v. Koontz, 104 U. S.15; Torrentv. Lumber Co., 37 Fed. Rep. 728. See Web8ter v. Crother8, 1 Dill. 301. In each of the present clitses, the summons, with the complaint, was served 31st July. The petition and bond were filed 17th August. Sixteen of the twenty days allowed under the, Code to the defendant to demur or answer had elapsed.· At this stage it: came into this court. But, before this court could proceed, the record should be filed here. This was done on October 18th, .atthe instance. ofthe defendants. See Mining Co. v. Bennett, 4 Sawy. 289. Thereupon the period for demurring or answering, suspended by the .I'emoval f again became current., Under our rules, the defendants, iOhey serve their defense before the rule-day next thereafter, rule-day in. November,-wiU be in time; Let the answers be filed 88 of to-day. . ... i
" JOHNSON fl. WATKINS. ;1 '
181
JOHNSON ". WATKINS.
(Circuit Oourt,
w.n. Michigan.
November 6, 1aB9.) ,
COSTs-IN FEDERAL COtJRTS-STATUTES-REPEAL.
St., u. S. § 968, provides that, where a p1aintifr in ,a oircult oourtrecovera less than $500, he shall not. recover costs, but at the discretion of the court may be adjudged 'to pay costs. Tbill section formed a. part of the judiciary acthwhich fixed .. the jurisdictional amount at $5OQ·. Act. Congo March 3, 18.87,flxed t e minimum limit of the amount in dispute, necessary to g-ive jurisdiction, at $2,000, but made no reference to section 968. Held, that the section was not amended by the act of 1887. Eastman v. Sherry, 37 Fed. Rep. 844, followed.
At Law.
Smith &: Stevens and MitCheU & McGarry, (E. B. Eggleston, of counsel,) ,Jor defendant. SEVERENS, J. In this cause, which was an action ·for mbtions were made by the respective parties for a judgment in form whichshould carry costs to them respectively. The process and declaration of the plaintiff claimed damages to an amount sufficiently large to . bring the caSe within the jurisdiction of the court; the minimum limit of which was fixed by the last act of congress dealing with the subject at $2,000. This was the act of March 3,1887. The jury, however, have rendered a verdict for only $1,333. Costs being a matter of statutory regulation, the right of parties to them depends entirely on the proper construction of the statutes relating thereto. The lower limit of jurisdiction under the former law was fixed at $500; and Jy section 968 of the Revised Statutes it was provided that, when the plaintiffrtlCovered less than that amount, he.should not recover costs, but, in the discretion of the coprt, might be compelled to pay tbe defendant's costs. This last section was not changed in terms, or amended, by the act changing the limit of jurisdiction in respect to the amount in controversy. It wus urged in behalf of the defendant that the primary intent of seetion 968 was to forbid the recovery of costs by the plaintiff in case he should not recover a sum equal, at least, to the minimum of jurisdiction, and that $500 was mentioned in this statute only because it was the symbol of that limitation, and as having a meaning synonymous therewith. Upon the argument of these motions, I was much impressed that this was the real intent of congress, and that, if so, effect should be given to it accordingly. The result would be that this section, so construed, would harmonize with the later law raising the limit of the jurisdiction to $2,000, and would now prevent a plaintiff from recovering costs who should recover less than that limit. But as the rule had been held otherwise by Judge JENKINS in the eastern district of Wisconsin, in Eastman v. Sherry, 37 Fed. Rep. 844, and the question was one of importance throughout the country, and one upon which it seemed advisable to have uniformity, I deemed it prudent to confer with the circuit judge about it. In answer to my communication, he informs me that the point
Frank S. Donaldson, for plaintiff.
On cross-motions for judgment for costs.
1:88
FEDERAL REPORTER.
been up before him on previous occasions, and that he has held to the same construction as Judge JENKINS did,-that th", statute, section 968, could not be expanded by interpretation beyond the purpose to forbid costs ,vhere the plaintiff recoveredlel:ls than $500; that the statute is so; and that it is for congress to change the rule, if it is advisable. Under these circumstances, my own doubt must give way to the holding of the circuit judge. The motion for costs to the defendant will therefore be denied. and that of the plaintiff allowed. ,
ALLEN
et al.
tl. FAIRBANKS.
(Circuit Court, D. Vermont. October 29, 1889.) 1. ABATEMENT AND REVIVAL-'-DBATH OJ!' PARTY-SCIRE FACIAS TO RBVIVB.
It is not a ground for a motion to dismiss a sc1Jrejacias to revive a suit upon the death of a defendant, that the bill does not state a cause ot action, or is not sustained by the proofs. . The liability of a stookholder to contribute towards debts of the company paid by other stockholders survives him.
2.
SAME-CORPORATIONS-STOCKHOLDBRs-CoNTRmUTION.
In Equity. On motion to dismiss a scire faciaB to revive an action. Daniel Roberts, for orators. Henry a. Ide, for defendant. WHEELER, J. Upon the death of the Jerendant a scire faciaB issued to revive the cause, pursuant to section 955, Rev. £t. The executors appear, and move to dismiss the scirefacias and the bill as to them, because the action does not survive. That the bill sets forth no ground for relief, and the plaintiff's proof establishes none, is urged against survival; because, if no cause of action existed, none could survive. But, whether the bill is demurrable or not, or is or is not sustained by proof, cannot be tried in this manner. The question is not whether the plaintift's maintained their cause of action by their pleadings or their proofs, but whether theit cause of action is such that they so have a right tl> maintain it if they can. The cause of action is the liability of the testator as a .stockholder in the Illinois '& St. Louis Bridge Company, a corporation of Illinois, Missouri, and the United States, for whose debts the stockholders were, under some circumstances, chargeable, to contribute towards debts paid by the other stockholders. The liability may not exist, those seeking contribution may not have become entitled to it, and the testator may not have been brought within the liability; but whether so or not are questions to be tried, and the orators cannot be' deprived of the right to have them tried by pointing to the probable reBUlt. If Buccess upon these questions will entitle the orators to relief, they cannot be deprived of the right to try to succeed because they may, 9r probably will, fail. Generally those who are subject to a COlUWOn.
EASTON t7. BOUSTON & T. C. RY. CO.
189
burden are holden to bear it equally and ratably. Deering v. Earl· oj Winchelsea, 2 Bos. & P. 270; Miller v. Sawyer, 30 Vt. 412; PoUard v. Bailey, 20 Wall. 520. The orators seek to bring the testator within this rule, and to have the common burden made even by contribution. If this can be done, the liability will rest upon the implied obligation to render to the orators what equitably and justly belongs to them. This does not grow outof any such tort as dies with the person at common law. but appears to be such an obligation as survives. Harnbly v. Trott. Cowp. 372; 2 Redf. Wills, 163; Dana v. IJUU, 21 Vt. 383. The orators appear, therefore, to be entitled to have their case tried, and it cannot properly fe dismissed without Motion to dismiss denied.
EASTON
et aI.
t1.
Ho
STON
& T. C. Ry. Co. et
at
(Oircuit Oourt. E. D. Texas. June 4, 1889.) L RAn.ROAD COMPUIES-MoRTGAGE FORECLOSURE-'l'RUSTEES AIm RBCEIVERs-CoIIPENSATION.
On foreclosure it appeared that the trustees and receivers contracted originally to render their services for the sum of $1.500, and that they were paid such sum up to the beginning-of the litigation; that since the litigation commenced they have been paid by allowances by the court to them as receivers. and byappropriation by themselves as trustees, at the rate of "'.500 per year. The services rentake all or nearly all of their . dered were not exclusive of their business, and did time, and there was no great responsibility requiring extraordinary compensation. Held, that they had been amply compensated, and that an extra allowance was improper. The allowance of 1500 was ample compensation for the services of a trustee of a mortgage. of which there \vas only one bond of $500 outstanding, the balance of the issue of $1,500,000 deposited with a trust company; his services in the litigation being merely nomma!, and going no further than the use of his name. Such trustee insisted on the services of his attorneys in flling the bill for foreclosure of the mortgage of which he was trustee; and it was admitted that at the time of such employment suoh services were worth f2,500. Held, that such sum should be to the attorneys. Iii. the foreclosure proceedings there was no substantial contest, the whole matter being practically carried out in pursuance of a plan of reorganization, for which the solicitors for complainants were in no particular degree responsible. Held, that the sum of $100,000 should be allowed as compensation to the solicitors who represented the trustees of all the mortgages.
.. SAME.
8.
SAlim-ATTORNEYS' FEES.
"
SAME.
In Equity. On exceptions to the master's report on the subject of compensation. Farrar, Jona8& KruttBchnitt, for Central Trust Company. T. J. Swmes, for Rintoul and Easton, trustees, and for Sullivan & Cromwell and Davenport, Dilloway & Leeds. Willie, Mott & Ballinger, in pro. per., and for Ballinger, Mott & Terry. (loldthwaite & Ewing, in pro. p('//'., and for Sheperd, trustee. Before LAMAR, J ustice, and PARDEE, J.