Peper v. Fordyce/Opinion of the Court

The first objection now made to the decree is that the circuit court had no jurisdiction, either of the suit originally begun in that court, or of that removed from the state court. If the jurisdiction does not appear on the face of the record in some form, the decree is erroneous, and must be reversed. That was decided at the present term in ''Continental Life Ins. Co. v. Rhoads, ante'', 193, to which reference is made for the authorities.

The jurisdiction in this case depends alone on the citizenship of the parties, and in the suits as originally begun, and on their consolidation in the circuit court, Latta, one of the defendants, is, and was, at the commencement of the actions, a citizen of the same state with the plaintiffs. This is fatal to the jurisdiction, because Latta was an indispensable party adverse in interest to the plaintiffs, and there was no separable controversy between the plaintiffs and Peper which would authorize the removal of the suit begun in the state court on that account. This was expressly decided in Thayer v. Life Ass'n, 112 U.S. 717, S.C.. 5 Sup. Ct. Rep. 355, a case which cannot be distinguished from this. It follows, therefore, that the decree must be reversed.

It only remains to consider the question of costs; for in Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, S.C.. 4 Sup. Ct. Rep. 510, and Hancock v. Holbrook, 112 U.S. 229, S.C.. 5 Sup. Ct. Rep. 115, it was held that, upon a reversal for want of jurisdiction in the circuit court, this court may make such order in respect to the costs of the appeal as justice and right shall seem to require. Here the error is attributable equally to both the parties. Fordyce sued originally in the circuit court, when, upon the face of his bill, it appeared there was no jurisdiction. Without discontinuing that suit, he sued again in the state court upon what was substantially the same cause of action, and to obtain substantially the same relief. This suit Peper and Latta caused to be removed to the circuit court, and in their petition set forth a state of facts which showed that the case was not removable. The cause was then entered in the circuit court, and an answer and a cross-bill filed by Peper and Latta, without any attempt on t e part of Fordyce or Moore to have the suit remanded, and without even calling the attention of the court to the question of jurisdiction. On the contrary, after the answer, and before the cross-bill, Fordyce moved for and obtained an order that the two cases-that which he had brought in the circuit court of the United States, and that which Peper and Latta had removed there-be heard as one, under the title of his own suit in that court. The cases then proceeded, without objection by either party, until after a final decree below, and an appeal by Peper and Latta to this court. Under these circumstances, we order that the costs of this court be divided equally between the parties, each paying half.

The decree of the circuit court is reversed for want of jurisdiction in the circuit court, and the cause remanded, with instructions to dismiss the bill filed originally in that court by Fordyce against Peper and Latta, without prejudice, and to remand the suit removed from the state court; each party to pay his own costs in the circuit court.