Pellett v. Great Northern Ry. Co.

• Decision Date: 04 December 1900
• Parties: PELLETT v. GREAT NORTHERN RY. CO. et al.
• Court: United States Circuit Court, District of Washington

105 F. 194

PELLETT v. GREAT NORTHERN RY. CO. et al.

United States Circuit Court, D. Washington, Eastern Division.

December 4, 1900

Lewis &amp Lewis, for plaintiff.

Will H Thompson and M. J. Gordon, for defendants.

HANDFORD District Judge.

This case was remanded to the state court in which it was commenced, on motion of the plaintiff, for the reason that it is not a case of which this court has jurisdiction, and at first blush it would seem to be inconsistent for the plaintiff to invoke its jurisdiction by asking this court to render a judgment in her favor for costs. Ordinarily, a court which has not jurisdiction to determine the rights of the parties as to the main controversy between them is simply bound to let them alone and to refuse its process for the benefit of either. Inglee v. Coolidge, 2 Wheat. 363, 4 L.Ed. 261; McIver v. Wattles, 9 Wheat. 650, 6 L.Ed. 182; Strader v. Graham, 18 How. 602, 15 L.Ed. 464; Hornthal v. Collector, 9 Wall. 560, 19 L.Ed. 650; Pentlarge v. Kirby (C.C.) 20 F. 898. The decision in this case, however, must be made with reference to the fifth section of the act of congress of March 3, 1875 (1 Sup.Rev.St. (2d Ed.) 83, 84), which provides that when a United States circuit court remands a case it 'must make such order as to costs as shall be just. ' In a decision by Judge Baker, concurred in by Judge Woods (Smith v. Telegraph Co. (C.C.) 81 F. 242), it was held that this statute does not confer authority to render a judgment for costs, including an attorney's docket fee, and the attention of the court appears to have been especially directed to an earlier decision, to the opposite effect, by Judge Brown, in the case of Josslyn v. Philips (C.C.) 27 F. 481. See, also, 18 Enc.Pl.& Prac. 381.

In view of the conflicting decisions above referred to, I have examined other authorities bearing upon the question, and have reached a conclusion in accord with Judge Brown's decision. The statute, in plain words and without any restriction whatever, requires the court, when a case is remanded, to make such order as to costs as shall be just. When a party brings an action into court, his adversary is subjected to inconvenience and expense, and has the right to have the professional services of an attorney to appear for him and defend his rights. Since the law requires the court in the exercise of its discretion, to consider the justice of the case, when an attorney has appeared, and prevailed to the extent of securing an order relieving his client from all...