502
. "
,'.'",
'I'
w!thout oeing 1n .,default of payment, and because the nght to recover III thlssUlt"depends upon the validity of the ordinance, and, if its validity is sustained in this8uit, the consequence to the, defendant will be that it will have,'&> pay a large annual tax, or submit to have its poles and its businelill:J d-estr?yed. ','," ' " " : " It istruei that 'Where l!;'bill in to abate a nuisance, or to set aside a: deed" 'Or 'for a\ decree giving I other ma.ndatory or preventive relief, it is the value of the property of which the defendant may be decree sought which is the test of jurisdiction, and not the claim of the complainant. Railroad Co. v. Market Co. v.Hoffman, 101U. 8. 1I2; Estes v. 183,ti 'SUp. Ct. 854. ,But it has been uniformly held in acctions at law, wheJ: the plaintiff's claim is for money, that the amouJ;li; iA ,controversy :is, determined by that particular demand the pJaintiff sues for, and not by any contingent loss which either sustaiJ;li through the indirect or probative effect of the jQ.dwent,however certain it may be that such loss will oc· cur. 8ecu,diyOo.v. Gay, );45 U. 8.123, 128up; Ot. 815; Elgin v. lfal'shall,: 106:(]1 S.578; ],L8up. Ct. 484; Gibson v. Shufeldt, 122 U. 8. 2'l:, 7 Sup. ct. 1066;' Clay Center v. Farm,ers' Loan & Trust Co., 145 U.. '8.225, 12 Sup. Ct. 817:i,LWashington,&G. R. Co. v. District of Columbia, l46,:{J. S.227 j l:3,8up. at. It seems to me clear, upon authority, that thissuitmJ.stbe remanded. . ,the"
et , '. ' I '
at. OF TRANflCRIPT OF RECORD ON ApPEAL.
(Circuit Court of AppeaIs,Fifth, Circuit. November 28, 1893.) MANDAMUS-COMPEI,LING
On, an appeal to the cil.'cuit, ,court of,appeals that court will not grant ,appellants' petition for a IDlindamus to the Clerk of the lower court to "certify and' transmit a transcript of the record, merely to determine in ,advance whetl:\er a certain deposition. is part of the record, where the , ordinaryproce4¥1' ,for the' pUlJlose.
,Appeal theOirouitCourt of the United States for the South· ern District of Mississippi. On application for mandafnus. Wade,R If. :Qabney, ,t,Qr,a,ppelleel:1\' , Before PARDEE andlfeOORlfICK, Circuit Judges, and LOCKE. District Judge. ' r Circuit Jndge. We do not deem it to add to what we have said in cases hereinbefore decided in reference to the duty of the clerk of the circuit court in making the return to a writ of error or order granting an appeal. For the purposes of this case, our views on the snbjectare snffioiently expressed in the cases of Blanks v. Klein, 1 Q.,iC. Ai 254, 49 Fed. 1; Pennsylvania C6.,_
GORDON ,. 8HITR.
oOS
etc., v. Jacksonville, T. & K. W. Ry. Co., 5 O. O. A. 53, 55 Fed. 131; and Warner v. Railway 00., 4 O. O. A. 670, 54 Fed. 920. The order granting the appeal was filed in the circuit court July 27, 1893. The time for filing the transcript was enlarged to the third Monday in November,-the first day of this term. The transcript has not been filed. On the first day of this term, counsel for appellant moved this court for leave to present a petition for an alternative mandamus, to be directed to the clerk of the circuit court, cQmmanding him to appear and show cause why a peremptory mandamus should not be awarded, "commanding him to certify and transmit to this court a true and complete transcript of the record and proceedings had in said court in said cause, as the same remain of record and on file in his office, following the 'note of e'idence made under the rule of court, and neither diminishing the record by leaving out any evidence presented below, nor increasing it with matter not presented." It appears from the face of this petition that the clerk contends that a certain deposition is a part of the record, and must be included in it, to enable him to make the full certificate required by our rule 14, 10. C. A. xv., 47 Fed. vii; while the appellant contends that no file mark appears on said deposition, to show that it was ever made part of the record, and that the note of evidence does notshow that said deposition was given in evidence on the hearing, and that hence the clerk can and must certify to the record as thus sh()wn by the file mark and the note of evidence. It is not intimated that the deposition was not in fact presented and considered on the hearing. It is not intimated that the clerk refuses to furnish a transcript otherwise correct, or that any demand for a transcript, accompanied by written instructions from the appeHant as to what it should embrace, was made by appellant. No showing is made of any oppressive accumulation of costs that might be put on appellant by including said deposition in the record, or that the payment of such additional costs in advance was insisted on by said clerk. The petition assumes the right to calion this court, by these extraordinary proceedings, to settle in advance whether a certain paper is or is not a part of the record. Our ordinary procedure is adequate. The prayer for mandamus must be refused. GORDON v. SMITH et al. 1
(CIrcuit Court ot Appeals, Fifth Circuit. May 15, 1894.) No. 114.
L
MORTGAGE-REDEMPTION BY EQUITABLE ASSIGNEE OIl' MORTGAGOR GATION,
SUBRO-
After foreclosure of a mortgage held by an agent tor a bank and pmchase of the property tor the bank at the foreclosure sale, the mortgagor, having a statutory right of redemption,. subject to liens ot judgments as well as to the rights under the mortgage, obtained a loo:n from complainant, on security ot a new mortgage of the property, by representations that he haa a perfect title thereto, and thereupon previous negotiations be.twoon the mortgagor and the ballk tor redemption ot the property by him