FEDERAL ltEPOR'1'ER J vol. 53.
Another which goes perhaps to still gl'eater length upon the same qitiel!tiOll; is fhecase'o! Sibbaldv. U. S., 12 Pet. 488. The syllabus states very clearly the point decided by the court:
"When the supreme oourt have executed their power in a case betore :tjJ.eir final decree 01' judgment requires some further 'act to be done, it can.noUssue an execution, but will send a special malfdate to the court below to aWlird it. Whatever wlls.before the court, and is disyosed of, is considered finally settled. 'rhe inferior court is bound by the decree, as the law of the case, and must carry it into execution according to the mandate. They can examine it for no other purpose than execution, or give any other or further relief, or review it upon any matter decided on apPeal, for error apparent, or intermeddle with it further than to settle so much as has been remanded."
. These cases settle the, question beyond all controversy that question, if raised at all, ·should have been raised in the court of appeals. There is another case-Stewart v. Salamon, 97 U. S. 362, opinion by Ohief JusticeW·aifu.-where it seems that the circuit court fol· lowed the mandate of the supreme court, and an appeal was taken frolD. its ·decision. The supreme court, in the opinion, say:
"The lights' the parties in the subject-matter of the suit were finally determined upon the original appeal, and all that remained for the circuit court to do was to enter a decree in accordance with our instructions and ('arry it into effect."
above cases., I, think, settle the disposition of these motions. They have to be denied.
GREENE v. QITY OF TACOMA et at (Circuit Cerurt, D. Washington, W. D. December 15, 1892.)
CIRetriT COURT - JURISDIOTION STATE PRACTICE.
IN CONTROVERSY -
,Under theprovisionsot the Washington Code, which, by Rev. St. § 914, ,operate as rules of. practice in actions. at law in the federal courts in that state, au allegation, in a complaint in ej·,ctJrent 1.I1 the States circuit court, as to the value of the property in controversy, is material, and, when denied in the answer, raises an issue; and consequently. to sust'lin a judgment for plaintiff, the court must, where the action. is tried without a jury, specially find that the value exceeds $2,000. Roberts v. Lewis, 12 Sup. Ct; Rep. 781, 144 U. S. 653, followed, notwithstanding Bank v. Hamor, 1 C. C. A. 153, 49 Fed. Rep. 45, and 7 U. S. App. 69, contra. ejectment against a city, which has projected a street through plaintiff1s, ,land, and an electric railway company using such street, the value o:t:. the land in controversy, for the purpose of determining the juriscUction of the court, is, as to such railway company, not that of the land necessary for its tracks and for the posts supporting the electric wires, but the vnlue of the whole street, "here such company has not disclaimed as to any part of the demanded premises. and the pleadings show that all the ground within the street is in controversy.
SAME-VALUE OF PREMISES IN EJECTMENT.
At Law. Action of ejectment by Lillian I. Greene against the city of Tacoma, Tacoma & Motor Company, and Steilacoom Railway Company. Judgment for plaintiff. For decision overruling demurrer to complaint, see 51 Fed. Rep. 622.
GREENE V. CITY OF
J. C.Stallcup, for plaintiff. F. H. Murray and Crowley & Sullivan, for defendants. lLUWORD, District Judge. The plaintiff is the owner of one acre of land situated in the city 'of Tacoma, and this action is to reco"Ver possession of a part of said acre, which the city has without legal authority taken possession of in the extension of one of the str<'!ts of the city. The Tacoma Railway & Motor Company is operating a street railway in said street. Said defendants ha"Ve answered, denying the plaintiff's title, and denying the allegations of diverse citizenship and "Value, upon which the right of the plaintiff to sue in this court depends, and also setting forth certain affirmative defenses. By a written stipulation a jury was waived, and the case has been argued and submitted to the court upon the pleadings and e"Vidence. There is no lack of evidence, nor conflict, as to the facts necessary to establish the plaintiff's title, nor as to the diverse citizenship of the parties; and to sustain the affirmative defenses pleaded by evidence the defendants have wholly failed. ' The code of this state governing procedure in civil actions reo quires that the plaintiff's complaint shall contain a plain and con· cise statement of the facts constituting the cause of action, and allows the defendant to demur to the complaint if it appears upon the face thereof that the court in which an action is brought has no jurisdiction of the parties or of the subject-matter of the action. If, in fact, the court is without jurisdiction, but the defect does not affirmatively appear on the face of the complaint, such defect maybe pleaded in the answer. A defendant may, in an answer, traverse the complaint by a general denial, or by a specific denial of the particular allegations which he wishes to controvert, and. also set forth as many affirmative defenses as he may have. Section 914, Re"V. St., in effect, makes these provisions of the Code operate as rules of practice in this court in actions at law, and dispenses with the necessity for a plea in abatement before answering to the merits when the jurisdiction of the court is contested. Under this system of practice, the allegation in a complaint as to the value of the property in contro"Veray is material, and a denial of it in the answer raises an issue. Hence, to sustain the jurisdiction and support a judgment in favor of a plaintiff, this court must, in a common-law action tried without a jury, in which there is such an issue, make a special finding that the "Value of the property in controversy exceeds $2,000. Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. Rep. 781. The decision of the supreme court in the case just cited was rendered after the decision of the circuit court of appeals for this circuit in Bank v. Hamor, 7 U. S. App. 69, 1 C. C. A. 153, and 49 Fed. Rep. 45, and, in so far as the two decisions are inconsistent with each other, the former must be deferred to, being a declaration of the law by the highest authority. According to my understanding of the decision in Roberts v. Lewis, l'ule 7 of this court, which requires matter in abatement to be pleaded separately before answering to the merits, is not applicable to actions at common law.
To prove that the property in controversy is worth more than $2,000, the plaintiff called four witnesses, whose testimony is to the effect that the land taken by the is of equal value with other portions of the acre, and their estimates as to the value of the entire acre Vitrv nom $7,000 to $8,000. This is met by an array of witnesses, call'e<J. by the defendants, giving estimates of value of the entir'Ol acl''', varying from $1,500 to $4,500. It is apparent to me that neither party called all the witnesses who .could have been found to brive a fa· vorable estimate, therefore I give but little consideration to the fact that the number of witnesses examined were call'.ld by defenda:nts. It is also apparent from the testimony that the real value of the nroperty is, on account of its situation and unimproved and unproductive condition, a matter of uncertainty. This land is part of the 60·a;cre tract involved in the partition suit of McDonald v. Donaldson, (recently decided in this court,) 47 Fed. Rep. 765. The price which the plaintiff paid for her property while the title waS snarled, as shown by said decision, and before the partition made pursuant thereto, is manifestly no criterion of value. Some of the witnesses for the defendants confessedly rate the value of all of said 60-acre tract below that of other lands of no greater intrinsic vHlue, on account of circumstances incident to the disputes and litigation concerning the title, which circumstances cannot, with fairness, he into account in estimating the value for the purpose of deter· mining the question of jurisdiction, because the matters referred to can have only a temporary effect. Mr. Howell, who was called as a witness in behalf of the plaintiff, and Mr. Cavender, who was called by the. defendants, impressed me as being equally candid, intelligent, and. disinterested. The lowest estimates made by them, added togetMl.' and divided by two, produces the sum of $5,500, which, in my jUdgment, is as fair an estimate of the value of the whole acre as can be made from the evidence in the case; and three eightllil of this amount, to wit, $2,062.50, is the amount which I find to be the value of the property in controversy. One· of the points in the argument of counsel for the railway company is that only the land actually necessary for its track and the r-osts which support hs eleetl'ic wires 8hould be taken into account in the estimate of value for the purpose of determining the juriE:diction l'I.'lto said defendant. But the plaintiff has not subdivided the premises, and the law authorizes her to join as defendants all parties actually united in withholding possession from her. The railway company has not disclaimed as to any part of the demanded premises, but defends for the whole. The pleadings must show what is in controversy, and in this case do show that all the ground within the street is in controversy; and from the evidence I find that the value thereof is above the amount fixed as the ltlllit of· jurisdiction in this court. Judgment for plaintiff, with nominal damages and costs.
FISHER v. YODER.
(Circuit Court, W. D. Pennsylvania. December 17, 1892.)
FEDERAL COURTS-JURISDICTION-RECEIVERS OF NATIONAL BANKS.
The federal courts have jurisdiction of suits by receivers of national banks, to collect the thereof, without regard to the citizenship of the plaintiff. Whore there has been a fair trial, and the verdict is fully warranted by the evidence, the court will not, in the exercise of its discretion, grant a new trial because one of the jurOl'8 was a nonresident of the district, which fact was not disclcStd at the trial.
NEW TRIAL-DISCRETION OF COURT-NoNRESIDENT JUROR.
At Law. Action by B. F. Fisher, receiver of the Spring Garden National Bank of Philadelphia, against L. T. Yoder, to recover assets alleged to belong to the bank. There was verdict and judgment for plaintifll, and defendant now moves for a new trial, and in arrest of judgment. Denied. B. C. Christy and J. S. Ferguson, for the motion. Walter Lyon, opposed. BUFFINGTON, District Judge. This is a motion for a new trial. Fisher, the plaintiff, is the receiver of the rn.'!l)lvent Spring Garden National Bank of Philadelphia, and both he and Yoder, the defendant, are citizens of Pennsylvania. It is urged that, by reason of their citizenship, this suit will not lie. That Fisher, the receiver of the national bank, is an officer of the United States, and as such is entitled to bring the present suit to collect assets of the bank, there is no doubt. His J;'ight to do so is fully sustained in the cases following. The thoroughness with which the question is there discussed renders further opinion needless. Platt v. Beach, 2 Ben. 303; Stanton v. Wilkeson, 8 Ben. 357; Stephens v. Bernays, 41 Fed. Rep. 401; 44 Fed. Rep. 643; Price v. Abbott, 17 Fed. Rep. 506; Hendee v. Railroad Co., 26 Fed. Rep. 677; Armstrong v. Trautman, 36 Fed. Rep. 275; Yardley v. Dickson, 47 Fed. Rep. 835. It is also urged such new trial should be granted because John W. Held, one of the jurors sworn in the case, was a nonresident of the district when the cause was tried. He had previously lived in the district, but had moved therefrom. These facts were not learned until after the trial. The generalUne of decision is that nonresidence of a juror is not, of itself, a sufficient reason to compel the grant of a new trial. It is a question of sound discretion whether, under all the facts connected with the case, it should be done. In the present case, there was a fair trial, the verdict was fully warranted by the evidence; and no other reason against the justness of the verdict, save the nonresidence of the juror, being urged, we think it ought to stand. To grant a new trial under such facts would be to prefer form to substance. It is therefore ordered that judgment be entered for the plain· tiff, receiver, and against the defendant.