Phoenix-Buttes Gold Min. Co. v. Winstead

• Decision Date: 26 August 1914
• Docket Number: 15259.
• Citation: 226 F. 863
• Court: U.S. District Court — Northern District of California
• Parties: PHOENIX-BUTTES GOLD MINING CO. v. WINSTEAD et al.

226 F. 863

PHOENIX-BUTTES GOLD MINING CO. v. WINSTEAD et al.

No. 15259.

United States District Court, N.D. California.

August 26, 1914

James L. Crittenden, of San Francisco, for plaintiff.

Frank R. Wehe, of San Francisco, for defendants.

VAN FLEET, District Judge.

The bill in this case was dismissed on the ground that the evidence disclosed that the cause had been collusively brought in this court by the plaintiff (Phoenix-Buttes G.M. Co. v. Winstead, 226 F. 855), and the question now presented is whether in such an instance the court may competently allow a defendant his costs. The theory of the plaintiff, in support of its objection to the award of costs is that the cause was dismissed for want of jurisdiction, and that in such a case the court's power extends only to a dismissal of the action, with no more right to adjudge costs than to pass upon the substantive questions presented by the bill. The contention is based on the authority of Citizens' Bank v. Cannon, 164 U.S. 319, 17 Sup.Ct. 89, 41 L.Ed. 451, as the leading case, and others of like character, which hold, in general terms, that where the action is dismissed for want of jurisdiction the court lacks power to award costs. That case and those referred to by the court as the foundation of the doctrine each presented an instance in which the want of jurisdiction appeared upon the face of the pleadings or record. Thus in Inglee v Coolidge, 2 Wheat. 363, 4 L.Ed. 261, cited by the court wherein the rule first found expression, the writ of error was ordered dismissed on the ground that there was nothing appearing in the record to show jurisdiction in the court to entertain it. Thereupon counsel for the defendant in error moved for costs, and the court, through Chief Justice Marshall, briefly answered:

'The court does not give costs where a cause is dismissed for want of jurisdiction.'

And in Hornthall v. The Collector, 9 Wall. 560, 566 (19 L.Ed. 560), cited by the court, the rule is stated thus:

'Costs were improperly allowed in the court below, as the case was dismissed for the want of jurisdiction on the face of the pleadings, and in such cases the general rule is that costs will not be allowed in this court.'

But the present case was not one in which the want of jurisdiction appeared from the face of the record. The bill made a perfect case within the jurisdiction of the court upon the ground of diversity of citizenship, and the infirmity was only disclosed in the evidence taken upon the hearing before the Master after answer filed; and the dismissal was had under the provisions of section 5 of the Act of March 3, 1875, c. 137, 18 Stat. 472 (in force when the action was commenced, now section 37 of the Judicial Code), which provides:

'That if, in any suit commenced in a Circuit Court or removed from a state court to a Circuit Court of the United States, it shall appear to the satisfaction of said * * * court, 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 Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall 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.'

In the first place, I do not regard a case dismissed in obedience to the requirements of this statute as one dismissed 'for want of jurisdiction' in the sense in which the expression is used in the above cases. There are two classes of cases specified in the statute as to which the court is admonished to 'proceed no further' upon its being disclosed that the case falls within either: First, where it is found that 'such suit does not really and substantially involve a dispute or controversy within the jurisdiction' of the court; second, where it is ascertained that the parties 'have been improperly or collusively made or joined' to make a case apparently...