Pentlarge v. Kirby
| Decision Date | 15 July 1884 |
| Citation | 20 F. 898 |
| Parties | PENTLARGE v. KIRBY. |
| Court | U.S. District Court — Southern District of New York |
Brodhead King & Voorhees, for complainant.
Edward Fitch, for defendant.
This writ of error is brought to review a judgment of the district court for the Southern district of New York in favor of the defendant for costs, and sustaining his demurrer to the plaintiff's complaint. The court below held that upon the case made by the complaint the court did not have jurisdiction of the subject of the action. For reasons which were announced orally at the hearing of the writ of error, no doubt is entertained that the district could correctly determined that the action was not one of which it had jurisdiction, but the question remains whether it was not error to order a judgment for the defendant awarding costs against the plaintiff.
The rule is uniform in the federal courts that where the case is one of which the court has no jurisdiction, the duty of the court is to dismiss it upon that ground, and without costs. Burnham v. Rangely, 2 Wood. & M. 417; McIver v Wattles, 9 Wheat. 650; Strader v. Graham, 18 How. 602; The McDonald, 4 Blatchf. 477; The Mayor v Cooper, 6 Wall. 247; Gaylords v. Kelshaw, 1 Wall. 83; Hornthal v. The Collector, 9 Wall. 560. The reason of the rule is stated by Mr. Justice SWAYNE in The Mayor v. Cooper as follows:
And in Burnham v. Rangely, WOODBURY, J., after citing decisions in various state courts sustaining the general rule, says:
'These generally proceed on the ground that the court has no jurisdiction to award costs any more than to award damages, or any other relief on the merits, when the case is not legally before them.'
In Hunt v. Inhab. of Hanover, 8 Metc. 346, DEWEY, J., repudiates the distinction which has sometimes been suggested, that no costs are to be allowed in plain and obvious cases of want of jurisdiction, but should be allowed when the question of jurisdiction is one of doubt and uncertainty; characterizing it as too shadowy and uncertain for a rule of practical application, and as unsound in principle.
Many respectable authorities are found to the contrary, and assert that inasmuch as the court must determine whether it has authority to entertain a particular controversy, it has, to that extent, jurisdiction over the parties and the subject-matter; its decision is a judicial act; and, as an incident of the power to decide, it has the power to award costs. It will not be useful to cite them, because the law of the federal courts is decisive here.
The learned district judge who decided this case, in opinions delivered by him in U.S. v. Treadwell, 15 F. 532, and Cooper v. New Haven Steam-boat Co. 18 F. 588, suggests that the provisions of the Revised Statutes of the United States have changed the pre-existing law so that now costs are to be allowed to the prevailing party in all cases where there is not an express statutory provision to the contrary; and therefore that the federal courts are not now to refuse costs when they dismiss cases for want of jurisdiction. One of the sections of the Revised Statutes to which he refers is 914, which was originally enacted in 1872, conforming the practice in the federal courts in common-law actions as near as may be to that of the state courts. This section goes no further than to prescribe a general rule regulating practice and procedure in the federal courts, in the absence of any legislation by congress upon the subject. Wear v. Mayer, 6 F. 660. It speaks only when the other statutes of the United States are silent. Peaslee v. Haberstro, 15 Blatchf. 472. It has no application to the subject of costs, because that subject is covered by other provisions of the federal laws. Moreover, it only applies to cases of which the federal courts have jurisdiction. It does not create or extend jurisdiction, but regulates the procedure in cases which the federal courts are authorized to entertain and decide.
The other provisions of the Revised Statutes, which it is suggested have changed the pre-existing law as to costs, are those found in sections 823 and 983. These sections deal with the subject of costs in suits in equity and admiralty, as well as at common law; and if it is true that they require the courts in all cases to award costs to the prevailing party when there are no express statutory provisions otherwise, they make a startling innovation upon the law as it previously existed, and introduce a radical change. There are no express statutory provisions which authorize a disallowance of costs to the prevailing party in the large class of c...
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... ... The ... Robert L. Stevens, 22 How.Prac. 78, Fed. Cas. No. 8; ... Wenberg v. A Cargo (D.C.) 15 F. 288; Pentlarge ... v. Kirby (C.C.) 20 F. 898; The Mayor v. Cooper, 6 ... Wall. 247, 18 L.Ed. 851; Citizens' Bank v ... Cannon, 164 U.S. 319, 324, 17 Sup.Ct. 89, ... ...
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