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Opinion of the Court.
395, and was carefully considered, and the rule, with its limitations, thus stated: “The rule as stated in 1 Daniel's Chancery. Practice, 555, 4th Am. ed., is, that if the objection of want of jurisdiction in equity is not taken in proper time, namely, before the defendant enters into his defence at large, the court, having the general jurisdiction; will exercise it; and in a note on page 550, many cases are cited to establish that “if a defendant in a suit in equity answers and submits to the jurisdiction of the court, it is too late for him to object that the plaintiff has a plain and adequate remedy at law. This objection should be taken at the earliest opportunity. The above rule must be taken with the qualification that it is competent for the court to grant the relief sought, and that it has jurisdiction of the subject matter.'
It was held in Lewis v. Cocks, 23 Wall. 466, that if the court, upon looking at the proofs, found none at all of the matters which would make a proper case for equity, it would be the duty of the court to recognize the fact and give it effect, though not raised by the pleadings, nor suggested by counsel. To the same effect is Oelrichs v. Spain, 15 Wall. 211. The doctrine of these and similar cases is, that the court, for its own protection, may prevent matters purely cognizable at law from being drawn into chancery at the pleasure of the parties interested ; but it by no means follows, where the subject matter belongs to the class over which a court of equity has jurisdiction, and the objection that the complainant has an adequate remedy at law is not made until the hearing in the appellate tribunal, that the latter can exercise no discretion in the disposition of such objection. Under the circumstances of this case, it comes altogether too late, even though, if taken in limine, it might have been worthy of attention.” See also Kilbourn v. Sunderland, 130 U. S. 505; Union Trust Co. v. Illinois Midland Railway, 117 U. S. 434, 468.
Further comment is unnecessary. The ruling of the Circuit Court was cornect, and its decree is therefore
Gibson v. Shufeldt, 122 U. S. 27, affirmed to the point that “in a suit in
equity brought in the Circuit Court by two or more persons on several and distinct demands, the defendant can appeal to this court as to those plaintiffs only, to each of whom more than $5000 is decreed.”
MOTION TO DISMISS an appeal in equity upon the ground that “the decree appealed from was not a joint decree, and imposed no joint debt, liability or obligation,” but that it was a series of distinct decrees against distinct parties, on distinct causes of action. The case is stated in the opinion. The cause was argued on its merits as well as on the motion to dismiss.
Mr. H. Tompkins, for appellants, (Mr. James McCartney and Mr. T. J. Golden were with him on the brief,) made the following points in opposing the motion to dismiss. These are the points referred to by the court.
This is an attempt, by supplemental bill, to reopen a part of the subject matter of an original suit of foreclosure by and against new parties alleging over $1,000,000 as the matter in dispute, and that appellants were not, but should have been parties to the original suit: a matter which was open and notoriously known when the original suit was brought. By this proceeding it is sought to foreclose 100,000 acres in parcels of 40 acres, the value of each parcel being less than $500. The gravamen of the action and decree is to enjoin, annul, ignore and render void proceedings in the courts of the State of Illinois, had before this proceeding was commenced.
The whole proceeding is in violation of Rev. Stat. § 723, and the Circuit Court had no jurisdiction. An appeal lies, as the jurisdiction of the court below is a proper subject for re
Argument for Appellants.
view. Dred Scott v. Sandford, 19 How. 393; Grignon v. Astor, 2 How. 319.
Parties cannot join to give jurisdiction. Oliver V. Alexander, 6 Pet. 143; Spear v. Place, 11 How, 522. Each complainant must be able to sue each defendant.
Rich v. Lambert, 12 How. 347; Strawbridge v. Curtiss, 3 Cranch, 257; Paving Co. v. Mulford, 100 U. S. 147. And when the record shows, as this record does show, that the Circuit Court was without jurisdiction, this court will remand the case with directions to dismiss it for want of jurisdiction.
The Revised Statutes provide, $ 723, that suits in equity shall not be entertained in the courts of the United States in any cause where a plain and adequate remedy at law may be had. In this cause the plaintiffs had their full and adequate remedies at law, and the court, as a court of equity, was consequently without jurisdiction.
An appeal lies in the case at bar, as the gravamen of appellee's action is to enjoin the Supreme Court of the State of Illinois against further proceedings, as alleged by appellees in the case of Scates v. King, until the appellees can foreclose in this court the 100,000 acres, or so much as each appellee
If the action is to foreclose, then it is in solido for the whole debt.
By “matter in dispute " is meant the subject of litigation.The matter for which suit is brought, and on which issue is joined. The matter in dispute is the debt claimed, not the damages or prayer for judgment. Rich v. Lambert, 12 How. 347, 352; Lee v. Watson, 1 Wall. 337; Wilson v. Daniel, 3 Dall. 401, 408.
“Purchasers of the equity of redemption, to redeem must pay the wbole debt.” There can be no severance until the debt is paid, or foreclosed, under a legal proceeding. Jones on Mortgages, SS 1063, 1070, 1075; Powell on Mortgages, 342; Bradley v. Snyder, 14 Illinois, 263; S. 6. 58 Am. Dec. 564; Meacham v. Steele, 93 Illinois, 135.
Equity of redemption, under the statute, is a privilege to be exercised within a limited time. The case at bar seeks, by
Opinion of the Court.
supplemental proceedings, to compel a redemption, against parties who have not been foreclosed, by subrogation to the rights of the original parties, claiming an equity by the deraignment of title, under a void foreclosure.
A supplemental bill to a foreclosure suit, alleging the equity of deeds by a deraignment through purchase at a master's sale, praying to be subrogated and have a foreclosure against parties in possession through 'purchase from the so-called mortgagor before the foreclosure suit was commenced, opens up the whole case, and all previous decrees and orders are vacated, that the original suit may be heard at the same time; and all parties must be brought in. Gibson v. Rees, 50 mlinois, 383.
Mr. Lucien Birdseye and Mr. Edwin Beecher for appellees, and in support of the motion.
MR. JUSTICE LAMAR delivered the opinion of the court.
This was a motion to dismiss an appeal upon the ground that the interests of each of the appellants in the case are separate and distinct, and do not involve an amount sufficient to give this court jurisdiction.
The case grew out of Kenicott v. Supervisors, 16 Wall. 452, and Supervisors v. Kennicott, 94 U. S. 498; and those cases are referred to for a more minute statement of all the early facts of the controversy than is necessary to be made for the purpose of considering the question now before us.
A brief summary
of some of the leading facts of the controversy will be sufficient for present purposes.
On the 20th of April, 1859, the county of Wayne in the State of Illinois, by virtue of an authority derived from an act of the state legislature, executed a mortgage and a deed of ' trust upon about 100,000 acres of its swamp and overflowed lands, to Isaac Seymour of New York City, as trustee, to secure the payment of $800,000 of its bonds, which had been issued for the purpose of raising funds with which to construct a railroad. On the same day the Mount Vernon Railroad Company, the corporation that had been organized to build the
Opinion of the Court.
road for the benefit of which the aforesaid aid had been
Between the date of the execution of the deed of trust and the mortgage before mentioned, and March 7, 1865, wher: the