and quality. There was evidence that, instead | ter is not responsible to any one of them for of a single rope made fast at both ends, a tackle the negligence of any other in the use of the of some kind should have been used, by which materials and implements which the master has the rope could have been slackened, and the supplied. Mc Dermott v. Boston, 133 Mass. 349; strain diminished. The defendants had made Johnson v. Boston Tow-Boat Co. 135 Mass. 209; ample provision for this. There was one tackle Kelley v. Norcross, 121 Mass. 508; Colton v. there in the locker with the ropes reeved into Richards, 123 Mass. 484; Moynihan v. Hills Co. the blocks, and, if more were needed, other 146 Mass. 586, 6 New Eng. Rep. 286; Daley v. blocks were there, with a plenty of new rope Boston & A. R. Co. 147 Mass. 101, 6 New Eng. ready to be reeved into them. Rep. 349. Properly to use pulleys, blocks, ropes and other ordinary tools and appliances, which have been furnished by a master to the workmen em ployed upon a derrick, is a part of the duty of the workmen. It is incidental to the management and use of the derrick. In working with a derrick the foreman and his assistants are fellow servants, and the mas There was no evidence of negligence on the part of the defendants. Evidence of the conversation with the foreman, in which he told how the accident happened, was rightly excluded. Williamson v. Cambridge R. Co. 144 Mass. 148, 3 New Eng. Rep. 750. Exceptions overruled. UNITED STATES CIRCUIT COURT, EASTERN DISTRICT OF NEW YORK. Cornelius FERGUSON, as Shore Inspector, 3. Courts will look behind the nominal etc., P. Sanford ROSS et al. (Two Actions.) (.... Fed. Rep.....) 1. That the removal of a cause into a United States Circuit Court was had upon application of the party moving to dismiss the same for want of jurisdiction is immaterial, and the cause will be dismissed upon his motion if the controversy is in fact one of which the court has no jurisdiction. parties on the record to ascertain who are the real parties to the suit, and will determine whether a State is the real party to an action brought by or against its officer by a consideration of the nature of the case as presented by the whole record. 4. A United States Circuit Court has no jurisdiction of a suit civil in form but penal in nature brought by a state officer in his official character to enforce penalties imposed by the state law and to be paid into the state treasury. and in which the officer has no personal interest not even for fees or commissions. (April 1889.) 2. A suit between a State and the citizens ACTIONS to recover penalties for the deposit of another State cannot be removed for trial from a state court into a United States Circuit Court on the ground of the citizenship of the parties. of prohibited materials in the waters of the bay and harbor of New York. On motion by defendants to set aside verdicts and to dismiss suits. Motion granted. NOTE.-Removal of cause to federal court; practice. W. & W. Co. v. Keyes, 96 U. S. 199 (24 L. ed. 656), not It has been held in one circuit, that a State can-afterwards supplied, is cause for a remand; but if not be sued by one of its own citizens in a federal the proceedings are so amended as to remove all court, although the plaintiff seeks to enforce a right objections, the cause will not be remanded. Eddependent upon the construction of the Constitu- gerton v. Gilpin, 3 Woods, 277; Desty, Fed. Proc. p. tion of the United States (Hans v. La. 24 Fed. Rep. 55); but it has been intimated in another circuit that this may be done. Harvey v. Virginia, 20 Fed. Rep. 411, 415. Before the Act of 1887 it was held that a suit instituted by a State against one of her own citizens might in a proper case be removed into a federal court. Ames v. Kansas, 111 U. S. 470 (28 L. ed. 490); Foster, Fed. Jud. Acts, p. 9. If the case is not one of federal cognizance, it may be dismissed or remanded at any stage of the proceedings. Dennistoun v. Draper, 5 Blatchf. 336; Pollard v. Dwight, 8 U. S. 4 Cranch, 421 (2 L. ed. 666); Wood v. Matthews, 2 Blatchf. 370; Murray v. Patrie, 5 Blatchf. 343. The federal court cannot proceed unless it has jurisdiction, whatever the condition of the parties may be (McMurdy v. Conn. Gen. L. Ins. Co. 6 Ins. L. J. 666, 9 Chic. L. N. 324; Young v. Andes Ins. Co. 1 Flipp. 599, 3 Cent. L. J. 719); and it must determine for itself the question of jurisdiction. Field v. Lownsdale, Deady, 288. The record, including the petition, must show jurisdiction in the circuit court, and any omission (Trafton v. Nougues, 4 Sawy. 178; Little York Gold 228. Remanding cause to state court. The court will, without formal motion, take notice of a jurisdictional matter which is ground to remand the cause. Beede v. Cheeney, 5 Fed. Rep. 388; Desty, Fed. Proc. p. 227. If the case does not substantially involve a controversy within the jurisdiction of the court, it will be the duty of the court to remand it. Stevens v. Richardson, 9 Fed. Rep. 191, 20 Blatchf. 53, 12 Reporter, 678; N. O. M. & T. R. Co. v. Miss. 102 U. S. 135 (26 L. ed. 96); Ryan v. Young, 9 Biss. 63, 20 Alb. L. J. 79, 8 Rep. 329. So, if the petition and affidavit fail to bring the cause within the statute, it is the duty of the circuit court to remand it. Dennistoun v. Draper, 5 Blatchf. 336. The objection to the want of jurisdiction, appearing on the face of the record, must be taken by motion to remand. Hoyt v. Wright, 4 Fed. Rep. 168. A motion to remand will not be entertained, unless from unavoidable necessity, to ascertain the appropriate tribunal to hear and determine the case. lbid. Statement by Lacombe, J.: This is an action brought by the plaintiff in his official capacity as shore inspector, under the Laws of the State of New York, to recover penalties from the defendants for depositing prohibited materials in the waters of the Bay and Harbor of New York. Plaintiff is a citizen and resident of New York (Eastern District); defendants are citizens and residents of New Jersey. The actions were begun in the State Supreme Court, and removed here by the defendants, under the Act of March 3, 1887. Upon the trial, defendants moved for a dismissal, on the ground that the court had no jurisdiction of the subject matter of the actions. The motion was denied, with leave to renew after verdict, when the question raised could receive more careful consideration. Verdicts were found for the plaintiff in both cases, and upon motions for a new trial, the question of jurisdiction is again presented. The act of which it is claimed the defendants were guilty in each particular case, was the dumping of dredging material in the Bay and Harbor of New York. The statute under which these actions were prosecuted is chapter 604 of the Laws of 1875, of the State of New York, as amended by chapter 414 of the Laws of 1885. The inspector is given power in his discretion, with the consent of the court, to remit all or any part of the penalties thus incurred; and it is further provided that all moneys recovered by civil action, after deducting costs, counsel fees, etc., shall be paid into the treasury of the State. The penalties, and the mode of recovering the same shall, it is further provided, be deemed to be substituted for all others theretofore provided by law for the same or like offense. The object of the Act, as declared in the title, is to protect the shores and Bay of New York, and the seaside resorts near the same. Mr. Joseph C. Jackson, for defendants, for the motion: The place of the alleged offense as proven is not within the jurisdiction of this court, but within that of the courts of the State of New Jersey. Actions for penalty should be brought within the district where the alleged cause of action arose. The Sarah E. Kennedy, 25 Fed. Rep. 569; Am. Union Teleg. Co. v. Middleton, 80 N. Y. 412; Cragin v. Lovell, 88 N. Y. 258. State laws, although they may furnish rules for the ascertainment of the rights of parties, cannot give jurisdiction to the federal courts. The Orleans v. Phœbus, 36 U. S. 11 Pet. 175 (9 L. ed. 677). A state cannot give jurisdiction to any federal court. Ex parte McNiel, 80 U. S. 13 Wall. 243 (20 L. 626). This Act makes it unlawful to deposit such materials within certain specified limits, including the Bay and Harbor of New York, and provides that any person offending against the provisions of the Act shall be guilty of a mis-ed. demeanor, and shall, upon conviction, be punished by the infliction of a fine of not less than eral tribunal. $100 nor more than $500, or by imprisonment as in case of misdemeanors, or both, in the dis-ed. 853). cretion of the court. Out of any moneys received from fines under the Act, such sum or sums shall be allowed and paid for the expenses and disbursements attending the arrest, as the court or magistrate may deem reasonable and proper. The Act next provides for the appointment of a "shore inspector" of the counties named, to hold office for three years, and to serve until his successor shall be appointed. He is given an annual salary of $2,000 (in lieu of all other compensation) which with the salaries of his subordinates, is made a county charge. It is made his duty to investigate and report any and every violation of the provisions of the Act, and he is given power to arrest offenders. A party forfeits nothing by going into a fed. Ex parte Schollenberger, 96 U. S. 369 (24 L. The courts of the United States have no power to execute the penal laws of an individual State. Gwin v. Breedlove, 43 U. S. 2 How. 29 (11 L. ed. 167); affirmed in Gwin v. Barton, 47 U. S. 6 How. 7 (12 L. ed. 321). Mr. James S. Church for plaintiff, contra. Lacombe, J., delivered the following opin ion: The fact that removal into this court was had upon the application of the defendant is immaterial if the controversy is one of which the circuit court has no jurisdiction. Lazensky v. Knights of Honor, 32 Fed. Rep. 417. There is no pretense that the matter in disTo carry out the objects of the Act, the sum pute arises under the Constitution or laws of of $15,000 is appropriated for expenses. It is the United States. It is only "a controversy made a county tax, and when raised is paid between citizens of different States" that the over to the state comptroller. plaintiff insists that this court has power to dispose of it, and on that theory he seeks to sustain the removal. By the 8th section of the Act (the particular one under which these actions were prosecuted) it is made unlawful to permit any dredgings and materials taken from any slip, basin, or shoal in the Port of New York to be deposited or placed elsewhere than beyond certain prescribed limits. For each and every violation of the provisions of this Act all persons so offending are made jointly and severally liable to pay a penalty of $1,000, together with costs for each and every such offense. Such penalty is to be recovered by and in the name of the said inspector in a civil action in any court of competent jurisdiction in the State. There is no statute which authorizes the removal of a suit between a State and citizens of another State on the ground of citizenship, for a State cannot, in the nature of things, be a citizen of any State. Alabama v. Wolffe, 18 Fed. Rep. 836; Stone v. South Carolina, 117 U. S. 430 [29 L. ed. 962]. The nominal plaintiff here is an individual, but he sues only in his official character. The suit is brought to enforce a police regulation of the State; he has no personal interest in its |subject matter-not even for his fees or com mission, for he is a salaried officer whose compensation is secured irrespective of the result of the suits he may bring. In the event of his removal from office, the suit would be continued by his successor, not by himself. also given power to compromise actions. The supreme court held (supra), that the law was penal, and that a suit to enforce could not be maintained in the federal courts. In the language of Mr. Justice Gray, delivering the opinion: The rule that the courts of no country only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the State for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, and to all judgments for such penalties Courts will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit, and will deter-execute the penal laws of another applies not mine whether a State is the real party to an action brought by or against its officer by a consideration of the nature of the case as presented by the whole record. Governor of Ga. v. Madrazo, 26 U. S. 1 Pet. 110 (7 L. ed. 73); Re Ayers, 123 U. S. 443 (31 L. ed. 216); N. Y. v. La. 108 U. S. 76 (27 L. ed. 656; Hagood v. Southern, 117 U. S. 52 (29 L. ed. 805); La. v. Jumel, 107 U. S. 711 (27 L. ed. 448); Browne v. Strode, 9 U. S. 5 Cranch, 303 (3 L. ed. 108); Maryland v. Baldwin, 112 U. S. 490 (28 L. ed. 822); Nc Nutt v. Bland, 43 U. S. 2 How. 15 (11 L. ed. 159). The real party prosecuting these suits is the State of New York, and they are, therefore, not removable under the Act of 1887. "The Statute of Wisconsin under which the State recovered in one of her own courts the judgment now and here sued on was in the strictest sense a penal statute, imposing a penalty upon any insurance company of another State doing business in the State of Wisconsin without having deposited with the proper officer of the State a full statement of its property and business during the previous year... The cause of action was not any private injury, but solely the offense committed against the State by violating her law. The prosecution was in the name of the State, and the whole penalty, when recovered, would accrue to the State, and The cases at bar are brought to enforce pen- be paid one half into her treasury and the other alties imposed by state law to be paid to the half to her insurance commissioner, who pays state treasury, and are of a penal not a civil all expenses of prosecuting for and collecting nature. As such they cannot be sustained in such forfeitures. The real nature of the case the courts of the United States. Gwin v. Bar-is not affected by the forms provided by the ton, 47 U. S. 6 How. 7 (12 L. ed. 321); New Hampshire v. Grand Trunk R. 3 Fed. Rep. 887. Moreover, the cases provided for by the statute conferring jurisdiction upon the circuit courts are suits "of a civil nature, at law or in equity." They are undistinguishable in principle from Wisconsin v. Pelican Insurance Company, 127 U. S. 265 (32 L. ed. 239). By the laws of the State of Wisconsin the officers of fire insurance companies doing business in the State were required to file certain reports, and to forfeit $500 for failure so to do. It was made the duty of the commissioner of insurance to prosecute actions to recover such penalty in the name of the State, one half of the recovery going to the state treasury, the remainder to the insurance commissioner who bore the expenses of the suit. He was law of the State for the punishment of the offense. It is immaterial whether, by the law of Wisconsin, the prosecution must be by indictment or by action; or whether, under that law, a judgment there obtained for the penalty might be enforced by execution, by scire facias or by a new suit. In whatever form the State pursues her right to punish the offense against her sovereignty, every step of the proceeding tends to one end-the compelling the offender to pay a pecuniary fine by way of punishment for the offense.' The motion to dismiss both actions must therefore be granted, but, as defendant moved them into this Court, without costs. an alleged libel published in said paper upon him. The appellant dismissed the action as to Dr. Keller. An answer was filed in the name of the Times Company without disclosing whether or not it was an incorporated institution or merely a private concern, alleging the truth of the libelous matter charged. The pleadings having been made up for more than a year, the Times Company filed an amended answer, disclosing the fact that it was not incorporated. Thereupon the appellant filed an amended petition, setting up the fact that his allegation that the Times Company was a corporation was a mistake, and that The Times was a private concern owned and published by the appellees, Haldeman and Logan, as partners. These two partners were summoned to answer this amended petition. They answered, among other things, that more than one year having elapsed since the publication complained of, the action against them was barred by the Statute of Limitations of one year. The lower court deeming the reply to this plea insufficient, sustained a demurrer to it, and the appellant declining to plead further, his action was dismissed. The sole question is, Was the demurrer properly sustained? The appellant, in support of his contention that the demurrer was improperly sustained, relies upon the case of Hickman v. Louisville & N. R. Co. 9 Ky. Law Rep. (opinion by Chief Justice Lewis). In that case the administrator, by mistake, sued the Louisville, Cincinnati & Lexington Railway Company for an injury to bis intestate, resulting in his death. An answer was filed, apparently in the name of said company. It was discovered after wards that the Louisville & Nashville Railroad Company operated the road, and did the injury complained of instead of the Louisville, Cincinnati & Lexington Railroad Company, and that the Louisville & Nashville Railroad Company had, in fact, filed the answer. Upon the discovery of the mistake the true state of case, by amendment, was set up, and judgment was asked against the Louisville & Nashville Railroad Company. To the action, as amended, the Louisville & Nashville Railroad Company interposed the plea of the Statute of Limitations. It was held that where a person against whom a cause of action exists is sued by the wrong name, and a summons is served upon him, though in his wrong name, and he appears and files an answer, though in the name by which he was sued, he is thereby effectually brought before the court. Thus, if a person, having a cause of action against A, sues him in the name of B, and A is served with summons in the name of B, and answers in that name, he thereby adopts the alias, and effectually brings himself before the court. Here the attempt was made to bring the Times Company before the court as a corporation, and to recover judgment against it as a corporation, but no such corporation was in existence; therefore, the Times Company representing individuals as partners, and not a corporation, such individuals were not brought before the court by filing the action against the Times Company and issuing summons thereon in that name alone. Had the appellees been made defendants to the original action in connection with the Times Company as an alleged corporation, and had been summoned and answered, or had appeared and answered without having been summoned-in such case the mistake in suing the Times Company as a corporation would not have availed the appellees on their plea of the Statute of Limitations. But the appellees, as the owners of The Times, were not made defendants until more than a year after the cause of action had accrued; therefore this case is wholly unlike the Hickman Case, supra. But the case falls within the principle that where a plaintiff commences his action against the wrong party (here no such party was in existence), and, after the Statute of Limitations has fully run, amends his petition by bringing in new parties as defendants, the parties so brought in may successfully rely upon the Statute of Limitations as a defense; also, as intimated, the bringing of the action against the Times Company by that name did not have the effect of bringing the individual members of the company before the court, nor of suspending the Statute of Limitations as to them; for the Statute of Limitations is not suspended by merely filing the petition in the proper court, but a summons must be issued against the defendants before the statute is suspended. The fact that the original summons was served by the sheriff upon the appellee, Logan, as the business manager of the supposed corporation, defendant, did not have the effect to bring him before the court as a defendant. The judgment is affirmed. GEORGIA SUPREME COURT. FEB., The declaration failed to state that the prop-ing been made to appear to him, he decided Mehring v. Charles, 58 Ga. 377; Turner v. A justice's court in Georgia is one of very limited jurisdiction. The justice can do no official act outside of his district, whether consentedito or not. When he leaves his district to perform a judicial act, he is simply a private citizen and not a judge. Johnson v. Heitman, 67 Ga. 482; Bozeman v. Singer Mfg. Co. 70 Ga. 685. that the jurisdiction having been waived, the it is unnecessary to mention here, were carried in error as to the jurisdiction of the magistrate The judgment of a court which has no jurisdiction of either the person or subject matter, or which is void for any other cause, is a mere nullity, and may be so held in any court, when t becomes material to the interest of the par-superior court should have sustained the same. ties to consider it. Code, Ga. 3594. Messrs. J. A. Thomas and W. B. Willingham, for defendant in error: The justice who tried the claim case had jurisdiction of the persons and subject matter of the suit, by consent of all parties in interest. The consent amounted to a waiver of jurisdiction. See Code, § 3460, 3595; Bostwick v. Perkins, 4 Ga. 47; Reichert v. Voss, 78 Ga. 54; Harbig v. Freund, 69 Ga. 180. Simmons, J., delivered the opinion of the court: Charles Taylor sued out an attachment against Kate Mullenix for the purchase money of certain furniture, which attachment was levied upon the furniture. N. M. Block filed a claim thereto, and gave a claim bond with A. Block as surety. The attachment was made returnable to the justice's court of the 716th District, G. M. Matt R. Freeman, the magistrate who issued the attachment, was notary public and ex officio justice of the peace in and for that district. the same. When the trial of the claim case came on, said Freeman held his court in the 564th District, and on the trial of the claim dismissed The property for which the claim bond was given was then advertised for sale by the constable, and on the day of sale the claimant failed to produce the property, as he agreed to do in his claim bond. Henderson, the constable, then brought suit upon the claim bond in the City Court of Macon, alleging as a breach thereof that Block, the claimant, had failed to produce the property on the day of sale. Block and his surety filed certain pleas to this suit, among them, that there had been no forfeiture of said bond, because there had been no legal trial of the claim case, the claim case having been tried by the magistrate outside of his district, and that therefore the magistrate had no jurisdiction to try the case. iff replied to this plea, and said that while it The plaintwas true that said claim case had been tried outside of the district of the magistrate, Block had agreed thereto, and had thereby waived the jurisdiction. On the trial of the case before the judge of the city court, without a jury, these facts hav3 L. R. A. Whenever a court has jurisdiction of the can waive the jurisdiction as to his person; but subject matter of a suit, the defendant therein ject matter nor of the person, no waiver by the if the court has neither jurisdiction of the subdefendant can give the court jurisdiction. court within the limits of his jurisdiction, and If in this case the magistrate had held his its, and had gone before the magistrate and the defendant had resided outside of those limwaived the jurisdiction as to his person, and the magistrate had entered up judgment against But when the magistrate went outside of the him, that judgment would have bound him. his court, he neither had jurisdiction of the limits of his jurisdiction and undertook to hold subject matter nor of the person; and no waiver or agreement made before him outside of his jurisdiction could confer jurisdiction upon him. Outside of the limits of his jurisdiction he was not a judge. He was no more than any private citizen; and any judgment he gave outside of his jurisdiction, whether by agreement, waiver or otherwise, was no more binding upon the parties than if it had been made before a private individual. cuted by selling the property, and Block's If the judgment in this case had been exestanding by seeing it sold and helping to sell it, as Reichert did in the case of Reichert v. Voss, 78 Ga. 54, and innocent third parties had purchased the property, then Block would have been bound, as Reichert was in that case, not because the judgment was a valid one, but because he stood by and allowed an innocent party to purchase the goods without any notice on his part. He would have been estopped cent parties to purchase his goods, as was done from asserting his rights after inducing innoby Reichert in the case above alluded to. The rights of innocent third parties are not inBut in this case the facts are entirely different. volved. The litigation is between the same parties. Block insists that there has been no forthe magistrate dismissing his claim was an feiture of his bond, because the judgment of illegal and void judgment, having been made by the magistrate outside of the district in which he had jurisdiction; and we think this been sustained by the court. exception was well founded, and should have Judgment reversed. |