Devost v. Twin State Gas & Elec. Co.
| Decision Date | 06 June 1918 |
| Docket Number | 1298.,1297 |
| Court | U.S. Court of Appeals — First Circuit |
| Parties | DEVOST v. TWIN STATE GAS & ELECTRIC CO. et al. CITY OF BERLIN v. DEVOST. |
Before DODGE and JOHNSON, Circuit Judges, and BROWN, District Judge.
By petition for a limited rehearing, Joseph O. A. Devost plaintiff below, seeks to review the order of this court so far as it directs the District Court to enter judgment for costs of that court.
Section 37 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat 1098 (Comp. St. 1916, Sec. 1019)), by its express terms, is applicable equally to suits commenced in a District Court and to suits removed from a state court, and concludes, 'and shall make such order as to costs as shall be just.'
In Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379 4 Sup.Ct. 510, 28 L.Ed. 462, cited in our former opinion, it was said of Act March 3, 1875, c. 137, Sec. 5, 18 Stat. 472 the basis of section 37:
.'
The requirement by section 29, Judicial Code (Comp. St. 1916, Sec. 1011), of a bond in removal cases 'for paying all costs that may be awarded by the said District Court if said District Court shall hold that such suit was wrongfully or improperly removed thereto,' does not give, but assumes and recognizes, power in the District Court to award costs-- a power granted by section 37. We find in section 37 no ground for the distinction which the petitioner makes between the power of the District Court to award costs in removed cases and the power to award costs in cases originally brought in the District Court. It may be said, however, that there are many cases in which the courts apparently have overlooked the purpose of Act March 3, 1875, c. 137, Sec. 3, 18 Stats. 470, as above set forth, and even after the passage of that act have applied the former rule which Act March 3, 1875, was designed to avoid. Citizens' Bank v. Cannon, 164 U.S. 319, 17 Sup.Ct. 89, 41 L.Ed. 451, gives special emphasis to the rule of the earlier cases, but does not consider the question of the power of the District Court under Act March 3, 1875, and the decision was very carefully confined to the question whether, when a Circuit Court dismisses a suit for want of jurisdiction, it can give a decree for costs, including a fee in the nature of a penalty. We are unable to regard that case as an authority which requires us to ignore the plain language of section 37.
It is to be noted that provision is made for cases in which, when brought or removed, the lack of jurisdiction may not appear immediately, and that if it shall appear, 'at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said' court, it may then 'dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just.'
Phoenix-Buttes Gold Mining Co. v. Winstead (D.C.) 226 F. 863, was a suit brought in the District Court, and costs were allowed. That court...
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Burleson v. Coastal Recreation, Inc.
...jurisdiction, the action ought to be dismissed with costs assessed against Burleson under 28 U.S.C.A. § 1919; Devost v. Twin State Gas & Elec. Co., 1 Cir., 1918, 252 F. 125. If the jurisdictional defect is corrected, the District Court should decide whether Burleson was prejudiced by Inland......
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Benitez v. Bank of Nova Scotia
...by one member of the Comunidad. The District Court had power to award costs. 28 U.S.C. § 80, 28 U.S.C.A. § 80; Devost v. Twin State Gas & Electric Co., 1918, 1 Cir., 252 F. 125; In re Snowden, 1929, D.C., 36 F.2d 282; The Commercial Guide, 1927, D.C., 23 F.2d 135; Phoenix-Buttes Gold Mining......
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In re Northern Indiana Oil Co.
...and concluded that under the circumstances of that case the bill should be dismissed without costs. See also DeVost v. Twin State Gas & Electric Co., 1 Cir., 252 F. 125, 126, which said of Citizens' Bank of Louisiana v. Cannon, 164 U.S. 319, 17 S.Ct. 89, 41 L.Ed. 451, on which appellant her......
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In re Snowden
...where it must dismiss a case for want of jurisdiction. This section of the Judicial Code is fully discussed in Devost v. Twin State Gas & Electric Co. (C. C. A.) 252 F. 125, and the conclusion is there reached, after full consideration of the authorities prior to and following the enactment......