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FECT APPEAL STATED.
Where one of several joint appellants fails to perfect his appeal, the appellee may have appellant called and dismiss the appeal or open the record and pray for an affirmance.
4. APPEAL AND ERROR 1159-Court ON ITS OWN MOTION MAY OPEN RECORD AND REVERSE, THOUGH APPELLANT DOES NOT PERFECT AP
3. APPEAL AND ERROR 784, 1125-REMEDIES WHEN JOINT APPELLANT DOES NOT PER- | for 20 per cent. thereof to the attorneys and another for the balance to her. Moyers & Consaul insisted that the provision of the act limiting fees of attorneys to 20 per cent. was invalid; and they brought this suit in the Supreme Court of the District of Columbia against Mrs. Erskine, the Secretary of the Treasury, and the Treasurer of the United States to recover the full 50 per cent. As in McGowan v. Parish, 237 U. S. 285, 35 Sup. Ct. 543, 59 L. Ed. 955, the plaintiffs prayed that they be declared entitled to recover from Mrs. Erskine the amount claimed; that the issuance to and the collection by her of any amount from the government be enjoined; and that either the whole amount be paid into the registry of the court, or that a receiver be appointed who should collect from the government the whole amount and pay therefrom to plaintiffs an amount equal to 50 per cent. of the collection. Mrs. Erskine died soon after the filing of the bill, whereupon
Though one of several joint appellants failed to appear in the Supreme Court, and took no part in the proceedings, the court may on its own motion open the record, and, if it perceives that the suit is for an illegal purpose, reverse the decree and remand, with instructions to dismiss the bill.
5. APPEAL AND ERROR 803-DISMISSAL FOR WANT OF PROSECUTION LEAVES CASE AS BE
A dismissal for want of prosecution remands the case to the lower court in the same condition as before the appeal was taken.
Appeal from the Court of Appeals of the Sue Erskine Newman, the administratrix of
District of Columbia.
Suit by Ida M. Moyers and another, partners, trading as Moyers & Consaul, against Ursula Ragland Erskine, and others, in which Sue Erskine Newman, administratrix of the defendant named, was made a defendant. A decree for plaintiff was affirmed by the Court of Appeals of the District of Columbia (47 App. D. C. 102, Ann. Cas. 1918E, 528), and defendants appeal. Appeal by the administratrix dismissed for want of prose cution, and case remanded; and decree reversed as to the other defendants, and cause remanded, with directions.
her estate, was made defendant.
The Secretary of the Treasury and the Treasurer moved to dismiss the bill of complaint, among other reasons, on the ground that collection of more than 20 per cent. was prohibited by section 4, and that the limitation thereby imposed was a valid exercise of congressional power. Sue Erskine Newman, as administratrix, moved to dismiss on the same ground, among others. The motions were overruled; and the court entered a decree directing payment of the money into court, ordering that plaintiff recover from the administratrix an amount equal to 50 per cent. of the collection from the government, and directing that this sum be paid out of the funds to be so paid into court.
From the decree for plaintiffs entered by the Supreme Court of the District of Columbia, all the defendants appealed to the Court of
Mr. Justice BRANDEIS delivered the opin- Appeals for the District of Columbia; and ion of the Court.
By Omnibus Claims Act March 4, 1915, c. 140, 38 Stat. 962, 963, discussed in Calhoun v. Massie, 253 U. S. 170, 40 Sup. Ct. 474, 64 L. Ed., decided this day, Ursula Ragland Erskine became entitled to receive from the Secretary of the Treasury the sum of $1,836.66.
Long before that date she and the firm of Moyers & Consaul, attorneys, had entered into a contract for the prosecution of her claim against the government. The contract provided that the attorneys should receive an amount equal to 50 per cent. of the sum collected. Its terms and the services rendered were, in substance, identical with those set forth in Calhoun v. Massie. In reliance upon section 4 of the above act, Mrs. Erskine refused to pay or assent to the payment to the attorneys of an amount greater than 20 per cent. of the appropriation; and the treasury officials were proposing to issue a warrant
when the latter affirmed the decree of the lower court, all the defendants joined in the
appeal to this court. The Honorable Carter Glass, upon becoming Secretary of the Treasury, was substituted for the Honorable William G. McAdoo; and the further substitution of the Honorable David F. Houston was made when he became Secretary of the Treasury. The appellees now move to dismiss the appeals of the Secretary of the Treasury and the Treasurer of the United States on the ground that neither they nor the government have any pecuniary or other interest in the suit. They also move to dismiss the appeal of the administratrix on the ground that she did not formally enter her appearance in this court nor take any part in the proceedings here.
[1, 2] The merits of the former motion we have no occasion to consider, for the follow
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
[4, 5] If the appellee had asked for an affirmance it is clear that it must have been denied because of the illegal purpose of the suit. But the court might go further. Since of its own motion it might dismiss this appeal (Hilton v. Dickinson, 108 U. S. 165, 168, 2 Sup. Ct. 424, 27 L. Ed. 688), and since on dismissing it a mandate to the lower court might issue (United States v. Gomez, 23 How.
ing reason: Section 4 of the act limited the appeal. Yates v. Jones National Bank, 206 compensation which the attorneys may col- | U. S. 158, 166, 181, 27 Sup. Ct. 638, 51 L. Ed. lect or receive to 20 per cent. The act is 1002. valid. Capital Trust Co. v. Calhoun, 250 U. S. 208, 39 Sup. Ct. 486, 63 L. Ed. 942; Calhoun v. Massie, supra. The plaintiffs were seeking the aid of the courts to recover moneys which an act of Congress prohibited them from collecting or receiving. If the bill had not alleged that this act was invalid, it would have been the duty of the lower court to dismiss the bill even if none of the defendants had raised any objection to the maintenance | 326, 330, 16 L. Ed. 552), this court might also of the suit. Oscanyan v. Arms Co., 103 U. S. 261, 267, 26 L. Ed. 539; Lee v. Johnson, 116 U. S. 48, 52, 6 Sup. Ct. 249, 29 L. Ed. 570; Coppell v. Hall, 7 Wall. 542, 558, 19 L. Ed. 244. The Secretary of the Treasury and the Treasurer of the United States did make such objection. The overruling of it in the courts below was error. The judgment must be reversed, and the cause remanded, with direc-necessary. The appellees have asked, not for tions to dismiss the bill as to them.
of its own motion entertain the alternative to dismissal spoken of by Mr. Chief Justice Marshall-i. e., open the record. If it did so and perceived that the court was being used to attain an illegal result, there would be power to reverse the decree and remand the cause, with instructions to dismiss the bill. But in the present case such a course is not
an affirmance, but for a dismissal, of the appeal of the administratrix. A dismissal for want of prosecution will remit the case to the lower court in the same condition as before the appeal was taken; and the lower court will then be free to take appropriate action to prevent itself from being used as an instrument in illegality. United States v. Pacheco, 20 How. 261, 15 L. Ed. 390; UnitStates v. Gomez, 23 How. 326, 339–340, 16 L. Ed. 552.
 The fact that the administratrix did not persist in her appeal should not result in affirmance of the judgment as to her. In Montalet v. Murray, 3 Cranch, 249, 2 L. Ed. 429, Mr. Chief Justice Marshall "stated the practice of the court to be that, where there is no appearance for the plaintiff in error, the defendant may have the plaintiff called, and *dismiss the writ of error, or may opened the record, and pray for an affirmance." This practice is still in force under rules 9 and 16 of this court (32 Sup. Ct. vii, ix). Todd v. Daniel, 16 Pet. 521, 10 L. Ed. 1054; Hurley v. Jones, 97 U. S. 318, 24 L. Ed. 1008; Appeal of Newman, administratrix, dismissThe S. S. Osborne, 105 U. S. 447, 450, 451, 26 ed for want of prosecution, and case reL. Ed. 1065. It is applicable to one of sever-manded for further proceedings in conformial joint appellants who fails to perfect his ty with this opinion.
Decree reversed as to appellants Houston and Burke, and cause remanded, with directions to dismiss the bill as to them.
(253 U. S. 473)
No. 493. CITY TRUST COMPANY, plaintiff in error, v. BANKERS MORTGAGE LOAN COMPANY. April 26, 1920. In error to the Supreme Court of the State of Nebraska. See, also, 102 Neb. 532, 167 N. W. 785. Mr. Sylvester R. Rush, of Omaha, Neb., for plaintiff in error.
PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), as amended by the act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214).
(253 U. S. 484)
No. 767. The STATE OF LOUISIANA, petitioner, v. WILLIAM T. JOYCE COMPANY et al. April 26, 1920. For opinion below, see 261 Fed. 128. Mr. Mathew J. Allen, Dist. Atty., of Amite, La. (Messrs. Wm. Winans Wall, of New Orleans, La., and Bolivar E. Kemp, of Amite, La., of counsel), for the State of Louisiana. Messrs. Robert R. Reid, of Amite, La., and Henry Fitts, of Chicago, Ill. (Messrs. Barthell, Fitts & Rundall, of Chicago, Ill., and R. C. & S. Reid, of Amite, La., of counsel), for respondents. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied.
(253 U. S. 484)
(253 U. S. 484)
No. 786. E. A. KING (and those who wish also to intervene for their benefit), petitioner, v. Robert H. BARR et al. April 26, 1920. For opinion below, see 262 Fed. 56. Mr. William C. Bristol, of Portland, Or. (Mr. Levi Cooke, of Washington, D. C., of counsel), for petitioner. Messrs. C. E. S. Wood, of Portland, Or., Eugene A. Cox, of Lewiston, Idaho, and Wood, Montague & Matthiessen, of Portland, Or., for respondents. Petition for writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied.
(253 U. S. 485)
No. 800. DUNKLEY COMPANY and Michigan Canning & Machinery Company, petitioners, V. PASADENA CANNING COMPANY and George E. Grier. April 26, 1920. For opinion below, see 261 Fed. 386. Messrs. Fred L. Chappell, of Kalamazoo, Mich., and Drury W. Cooper, of New York City, for petitioners. Messrs. Kemper B. Campbell, Francis J. Heney, Frederick S. Lyon, and William J. Carr, all of Los Angeles, Cal., for respondents. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied.
(253 U. S. 478)
No. 802. The NEW YORK CENTRAL &
HUDSON RIVER RAILROAD COMPANY, plaintiff in error, v. YORK & WHITNEY COMPANY. April 26, 1920. Petition for a writ of certiorari to the Superior Court of the State of Massachusetts granted.
No. 782. Herman BLOCH, petitioner, v. (253 U. S. 478) The UNITED STATES of America. April 26, No. 803. YORK & WHITNEY COMPANY, 1920. For opinion below, see 261 Fed. 321. plaintiff in error, v. The NEW YORK CENMessrs. C. B. Hudspeth, Geo. E. Wallace, and TRAL & HUDSON RIVER RAILROAD A. J. Harper, all of El Paso, Tex., and St. COMPANY. April 26, 1920. Petition for a Clair Adams, of New Orleans, La., for plain-writ of certiorari to the Superior Court of the tiff in error. Mr. Robert P. Stewart, Asst. State of Massachusetts granted.
Atty. Gen., and Harry S. Ridgely, of Washington, D. C., for the United States. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied.
(253 U. S. 479)
No. 805. The DISTRICT OF COLUMBIA, petitioner, v. R. P. ANDREWS PAPER COMPANY. April 26, 1920. For opinion below,
No. 812. Herman THEDEN and Anna Theden, petitioners, v. The UNION PACIFIC RAILROAD COMPANY. April 26, 1920. For opinions below, see 106 Kan. 40, 186 Pac. 752; 104 Kan. 289, 178 Pac. 441. Messrs. L. W. Keplinger, of Kansas City, Kan. (C. W. Trickett, of Kansas City, Kan., of counsel), for petitioners. Messrs. N. H. Loomis, of Omaha, Neb., and R. W. Blair and T. M. Lillard, both of Topeka, Kan., for respondent. Petition for a writ of certiorari to the Supreme Court of the State of Kansas denied.
(253 U. S. 482)
No. 844. PHILADELPHIA & READING RAILWAY COMPANY, petitioner, v. Marie E. POLK. April 26, 1920. For opinion below, see 109 Atl. 627. Petition for a writ of certiorari to the Supreme Court of the State of Pennsylvania granted.
No. 818. LEHIGH VALLEY RAILROAD COMPANY, petitioner, v. Frederick W. HOWELL et al., as firm of B. H. Howell, Son & (253 U. S. 499) Company, et al. April 26, 1920. For opinion below, see 109 Atl. 309. Messrs. Lindley M. No. 846. INTER-URBAN RAILWAY COMGarrison, Edgar H. Boles, and Richard W. Bar- PANY and London Guarantee & Accident Comrett, all of New York City, and Geo. S. Ho-pany, petitioners, v. Mrs. Fred SMITH. April bart, of Jersey City, N. J., for petitioner. 26, 1920. On petition for writ of certiorari to Messrs. Pitney, Hardin & Skinner, of Newark, the Supreme Court of the State of Iowa. See, N. J., and Butler, Wyckoff & Campbell, of New also, 171 N. W. 134. Dismissed on motion of York City (Messrs. Alfred F. Skinner, of New- counsel for the petitioners. ark, N. J., and Frederick B. Campbell, Paul C. Whipp, and Thomas R. Rutler, all of New York City, of counsel), for respondents. Petition for a writ of certiorari to the Court of Errors and Appeals of the State of New Jersey denied.
(253 U. S. 486) No. 852. FREEMAN-SWEET COMPANY, petitioner, v. LUMINOUS UNIT COMPANY. April 26, 1920. For opinion below, see 204
Fed. 107. Mr. Paul Bakewell, of St. Louis, [ States Circuit Court of Appeals for the Third
Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied.
No. 789. WEBER ELECTRIC COMPANY, petitioner, v. E. H. FREEMAN ELECTRIC COMPANY. May 3, 1920. For opinion below, see 262 Fed. 769. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit granted.
(253 U. S. 481) No. 847. MICHIGAN CENTRAL RAILROAD COMPANY, petitioner, v. MARK OWEN & COMPANY. May 3, 1920. For opinion below, see 291 Ill. 149, 125 N. E. 767. Petition for a writ of certiorari to the Supreme Court of the State of Illinois granted.
(253 U. S. 487)
No. 853. C. T. DOREMUS, petitioner, v. The
States Circuit Court of Appeals for the Fifth
No. 1. The UNITED STATES of America, appellant, v. LEHIGH VALLEY RAILROAD COMPANY. May 17, 1920. See, also, 38 Sup. Ct. 580. The Attorney General, for the United States. Messrs. John G. Johnson, of Oneonta, N. Y., Edgar H. Boles, of New York City, Everett Warren, of Scranton, Pa., John Hampton Barnes, of Philadelphia, Pa., Allan McCulloh and Elihu Root, Jr., both of New York City, Frank W. Wheaton, of Wilkes-Barre, Pa., and Nicholas W. Hacker, of New York City, for respondent. Ordered that this case be restored to the docket for oral argument.
No. 34. Franklin K. LANE, Secretary of the Interior, et al., appellants, v. CENTRAL PACIFIC RAILWAY COMPANY. May 17, 1920. For opinion below, see 46 App. D. C. 374, Ann. Cas. 1918C, 1002. Messrs. Charles D. Mahaffie and C. Edward Wright, both of Washington, D. C., for appellants. Messrs. A. A. No. 841. The UNITED STATES of Ameri- Hoehling, Jr., and C. F. R. Ogilby, both of ca, petitioner, v. ÆTNA EXPLOSIVES COM-Washington, D. C., for respondent. Leave PANY. May 3, 1920. Petition for a writ of granted to substitute as one of the appellants certiorari to the United States Court of Cus-John Barton Payne, present Secretary of the toms Appeals granted.
(253 U. S. 481)
(253 U. S. 487)
Interior, in the place of Franklin K. Lane, former Secretary thereof, on motion of Mr. Solicitor General King for the appellants.
No. 845. Ephraim LEDERER, collector of internal revenue, petitioner, v. NORTHERN No. 35. The NORTHERN PACIFIC RAILTRUST COMPANY and Henry R. Zesinger, WAY COMPANY, appellant, v. Franklin K. executors, etc. May 3, 1920. For opinion be- LANE, Secretary of the Interior. May 17, low, see 262 Fed. 52. Mr. Alex C. King, 1920. For opinion below, see 46 App. D. C. Sol. Gen., of Atlanta, Ga., and William L. Frier- 434. Messrs. Alex. Britton and F. W. Clements, son, Asst. Atty. Gen., for petitioner. Messrs. both of Washington, D. C., and Charles DonWm. Henry Snyder and Wm. M. Stewart, Jr., nelly, of St. Paul, Minn., for appellant. Leave both of Philadelphia, Pa., for respondents. Pe- granted to substitute as party appellee John tition for a writ of certiorari to the United Barton Payne, present Secretary of the In