United States v. Jardine
| Decision Date | 11 February 1936 |
| Docket Number | No. 7919.,7919. |
| Citation | 81 F.2d 747 |
| Parties | UNITED STATES v. JARDINE. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John W. Holland, U. S. Atty., of Jacksonville, Fla., and W. Sanders Gramling, Asst. U. S. Atty., of Miami, Fla.
Lloyd C. Hooks, of Miami, Fla., for appellee.
Before SIBLEY, HUTCHESON, and WALKER, Circuit Judges.
The District Court upheld a libel in rem against a seized vessel. On appeal we held it to be a public vessel of the United States immune from seizure, reversed the decree, and dismissed the libel. The appellant, the United States, has moved for a taxation of costs of appeal and particularly of the proctor's fee and the expense of printing briefs which are made recoverable as costs in appeals in admiralty by the Act of August 3, 1935, 49 Stat. 513, 28 U.S.C.A. § 572. The motion is opposed, first, because no judgment for costs can be given when a court holds itself without jurisdiction over the case, and, second, because rule 31 (4) of this court provides that in cases where the United States are a party no costs shall be allowed in this court for or against the United States.
On the point of jurisdiction, it is well settled that a trial court which has no jurisdiction to try the case can enter no judgment for costs. Smyth v. Asphalt Belt R. Co., 267 U.S. 326, 45 S.Ct. 242, 69 L. Ed. 629; The Hungaria (D.C.) 41 F. 109. But it is also settled that if the trial court erroneously exercises jurisdiction, an appellate court has jurisdiction to reverse the error and may award costs on the appeal although it directs the lower court to dismiss for want of jurisdiction without costs there. Blacklock v. Small, 127 U.S. 96, 97, 8 S.Ct. 1096, 32 L.Ed. 70; Mansfield, etc., R. Co. v. Swan, 111 U.S. 379, 387, 388, 4 S.Ct. 510, 28 L.Ed. 462. This court although it disposed finally of the libel for want of jurisdiction over the vessel, has jurisdiction to adjudge the costs of the appeal. Since Jardine wrongfully invoked the jurisdiction of the lower court, ordinarily the costs should justly go against him. Blacklock v. Small, supra, 127 U.S. 96, at page 105, 8 S.Ct. 1096, 32 L.Ed. 70; Everhart v. Huntsville College, 120 U.S. 223, 7 S.Ct. 555, 30 L.Ed. 623.
As to our rule, it was copied from that of the Supreme Court in a form maintained for many years. See 12 Pet. XVIII, 21 How. XIV, 109 U.S. 587, 222 U.S.Appendix p. 30. One of the shortest opinions in the books is that of Chief Justice Marshall in United States v. Barker, 2 Wheat. 395, 4 L.Ed. 271: "The United States never pay costs." A statutory exception to this statement was enforced in James Shewan & Sons, Inc., v. United States, 267 U.S. 86, 45 S.Ct. 238, 69 L.Ed. 527. The Supreme Court thereupon changed its rule to recognize such exceptions. 275 U.S. 618. Our...
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