Page:Federal Reporter, 1st Series, Volume 8.djvu/113

 lOWA HOMESTEAD CO. ». DES MOINES NAVIGATION, ETC., 00. 99 �stead Company, and that the homestead company should be enjoined from claiming or in any manner asserting that the taxes paid by said compiany are a lien upon the lands. The plaintiff in the original bill, also by leave of the court, presents an amendment to bis bill dismissing all claims whatever, except for a judginent against the navigation company for the amount of the taxes paid Litchfield; also presents an amendment to bis cross-bill, alleging that, by bis con- traot vnith the navigation company, be assumed all of said navigation company's liability to the complainant for the taxes in question. �George Crane, for plaintiff. �Wright, Gatch <& Wright, for defendant Litchfield. �Love, D. J., {giving the jvdgment of the court.) Thus it appears that, after many vicissitudes, this oause is again before us upon a motion to remand. Mr. Justice Miller, in denjdng a former motion, said that if the plaintiff would dismiss his claim to a lien upon the land, the cause should be remanded. This opinion must have pro- ceeded upon the ground that upon the withdrawal of that claim by the plaintiff there would be no jurisdiction here. It could not have stood upon any other ground whatever, for upon no other ground than a want of jurisdiction could the cause have been remanded by the order of the court without the consent of the defendant Litch- field. The plaintiff accordingly withdrew or dismissed bis claim to a lien upon the land. At that moment, according to Mr. Justice Miller's opinion, as we understand it, the jurisdiction failed here and the cause ought to have been remanded. But the defendant Litch- field, at this stage of the case, obtained from the court leave to file a cross-bill, by wbich he sought to make a new case, showing an interest other than that of defeating the lien asserted by the plaintiff. The writer of this opinion, Judge McCrary coneurring, granted the order giving leave to file the cross-bill. We are both now, however, convinced, upon further argument and fuller consideration, that the order granting leave to file the cross-bill ought to have been denied. �Li the first place, if Mr. Justice Miller's opinion was correct, there was no jurisdiction after the withdrawal of the plaintiff's claim of lien; and how could there be any further proceeding in the cause without jurisdiction? The only thing to be done was then to remand the cause to the state court. But again the plaintiff dismissed a material part of his claim, upon the opinion and suggestion of the court that it would thereby entitle itself to an order remanding the cause. Having thus, at the suggestion of the court and in accord- ��� �