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8. The rule of the Federal courts must govern the plaintiff, having received the amount

as to the allowance of attorneys' fees on an taxed in his favor as attorneys' fees as part Injunction bond glven in a Federal court, of the costs in the equity suit mentioned in though the action on the bond is brought in the pleadings and evidence in this case, he I state court.

cannot now recover anything on account of: (No. 148.)

attorneys' fees in this case.

* Judgment having been entered in favor Argued and submitted January 29, 80, having been overruled, an appeal was taken

of plaintiff and a motion for a new trial 1902. Decided March 10, 1902.

to the Kansas City court of appeals, and the N ERROR to the Kansas City Court of its opinion the court recited the contentions

judgment was affirmed. In the course of view a decision in favor of the plaintiff in be untenable. These contentions were thus an action on an injunction bond. Reversed. stated by the court: See same case below, 154 Mo. 300, 55 S.

"1. Defendant's objections to the judg. W. 470.

ment below may be thus stated: First,

that there was no breach of the conditions Statement by Mr. Justice White: of the bond in that it was not alleged or

The action below was brought by Elliott proved that any damages had been previousin the state circuit court of Cooper county, ly adjudged against the defendant, whereas Missouri, against the railway company, the condition of the bond is that defendant plaintiff in error herein. Recovery was 'should pay all sums of money damages and sought upon an injunction bond given in an costs that shall be adjudged against it,' etc.; equity cause in a suit in the circuit court and, secondly, it is contended that as the of the United States for the central division injunction bond was given in a proceeding of the western district of Missouri. The pending in the United States court, the railway company was complainant in the damuges must be fixed and determined aoequity cause, and Elliott was defendant. The cording to the rules and practice of the Fedcircuit court of the United States, as the re. eral courts; that attorneys' fees are not sult of a mandate of the circuit court of ap- there considered elements of damage in suits peals, entered an order dissolving the in- on injunction bonds, and that therefore our junction, and thereupon this action was state courts should apply the same rule in commenced. The damages which it was al. suits on bonds given in the Federal courts; leged were embraced in the condition of the and thirdly, it is insisted that the trial bond were averred to consist of payments court erroneously allowed as damages at made for attorneys' fees, traveling and oth torneys' fees for defending the entire case er similar expenses of the plaintiff, asserted that the injunction was merely incidental to have been disbursed during the course of to the principal case, and no attorneys' fees the litigation in the United States court were paid to secure its dissolution.” [77

The answer consisted of a general denial, Mo. App. 659.) and alleged that the equity suit in which A motion for a rehearing was thereafter the bond was given was made necessary to filed, in which, among other things, it was enable the defendant to make its defense contended that the cause involved a Federal to an action at law, which had prior to the question, "for the reason that the controverequity suit been brought against the rail. sy in this suit arises under the authority of way company by Elliott The cause was the United States, and under the laws of tried by the court without a jury. It ap- the United States governing and applicable peared on the trial that in dismissing the to United States courts," and the court was bill in the equity cause the statutory allow asked in the event that it should refuse to ance to attorneys and other costs had been grant a rehearing, to transfer the case to taxed, and paid by the complainants in the the supreme court of the state of Missouri, equity cause in the United States circuit for the reason that a Federal question is court. No objection was interposed at the involved, and because the subject of the contrial to evidence introduced for the plaintiff troversy of this suit arises under the auas to the value of attorneys' services and the thority of the United States and under the other sums disbursed for the expenses al exercise of such authority, and under the leged in the petition. At the close of the laws of the United States governing and trial the court, over the objection of the de controlling the courts of the United States fendant, declared the law to be that the and the proceedings therein.” The motion plaintiff was entitled to recover his reason for a rehearing having been overruled, it able personal expenses and reasonable attor. appears from a stipulation contained in the neys' fees incurred for the services of attor record that an application was made to the neys in procuring the dissolution of the in- supreme court of the state of Missouri for a junction. The following, among other pray. writ of prohibition against the judges of ers asked by the defendant, were refused: the said Kansas City court of appeals to

"2. The court declares the law to be that restrain the further exercise of jurisdiction the plaintiff is not entitled to recover as in the cause, and to require the record and damages on the injunction bond sued on any proceedings to be certified to the supreme sum which he may have paid out or become court. This application was denied. 154 liable for as attorneys' fees."

Mo. 300, 55 S. W. 470. "5. The court declares the law to be that Thereupon the present writ of error was

allowed, and the record of the cause was tually considered and decided by the stato brought here from the Kansas City court of court, the right to review exists. Mallett appeals.

v. North Carolina, 181 U. S. 589, 592, 45 L.

ed. 1015, 1017, 21 Sup. Ot. Rep. 730. Mr. George P. B. Jackson for plain Now, it plainly appears that the Kansas tiff in error.

City court of appeals considered that there Mr. W. M. Williams submitted the case was presented to it for decision the question for defendant in error.

whether, in an action brought in a state

court on an injunction bond given in a Mr. Justice White, after making the court of the United States, the state court foregoing statement, delivered the opinion was bound to apply to such a bond the rule of the court:

prevailing in the courts of equity of the The proposition relied upon to secure the United States, viz., that attorneys' fees are reversal of the judgment below is that the not a proper element of damage. We say state court erroneously allowed, as an ele, this is undoubted, since the opinion of the ment of damage upon an injunction bond Kansas City court of appeals recites that given in a court of the United States, the such was the contention, and the court prosum of alleged counsel fees for procuring a ceeded to consider and decide it. That this dissolution of the injunction, and that as contention involved a claim of immunity such fees under the rule prevailing in the under an authority exercised under tho equity courts of the United States are not United States, reviewable in this court, we properly allowable, therefore the state have recently decided in Tullock v. Mulcourt denied an immunity asserted in favor vane, 184 U. s. , ante, p. 372, 22 Sup. Ct. of the defendant below and arising from an Rep. 372. True it is that the Kansas City authority exercised under the United States. court of appeals held, contrary to the rule

We are at the outset met by an objection announced in the Tullock case, that the that there is no jurisdiction to review the state court was not bound to apply the rulez judgment of the Kansas City court of ap- of damages "prevailing in the courts of the peals. It is contended on behalf of the de- United States, and in effect while so con. fendant in error that the Federal question cluding decided that the claim that the bond relied upon was not raised below, and there should be enforced according to the rule prefore is not reviewable here.

vailing in the courts of the United States The general rule undoubtedly is that those involved no Federal question, but the fact Federal questions which are required to be that the state court, whilst deciding the specially set up and claimed must be so Federal question, erroneously held that it distinctly asserted below as to place it be- was not a Federal one, does not take the yond question that the party bringing the case out of the rule that, where a Federal case here from the state court intended to question has been decided below, jurisdicand did assert such a Federal right in the tion exists to review. The result of the state court. But *it is equally true that contrary doctrine would be this, that no even although the allegations of Federal case where the question of Federal right had right made in the state court were so gen- been actually decided could be reviewed eral and ambiguous in their character that here if the state court, in passing upon the they would not in and of themselves neces- question, had also decided that it was nonsitate the conclusion that a right of a Fed. Federal in its character. The assertion eral nature was brought to the attention of that a Federal right was not raised below is the state court, yet if the state court in de therefore without merit. ciding the case has actually considered and It is, however, insisted that as the writ determined a Federal question, although of error in this case was directed to the arising on ambiguous averments, then, a Kansas City court of appeals there is no Federal controversy having been actually jurisdiotion, because if there was a Federal decided, the right of this court to review question presented that court was not, unohtains. F. G. Oxley Stave Co. v. Butler der the Constitution of the state of MisCounty, 166 U. S. 648, 660, 41 L. ed. 1149, souri, the highest court of the state in which 1153, 17 Sup. Ct. Rep. 709. All that is es- a decision on such question could have been sential is that the Federal questions must had. be presented in the state court in such a The Kansas City court of appeals was manner as to bring them to the attention of created by an amendment to the Constitu. that tribunal. Chicago, B. & Q. R. Co. v. tion of Missouri adopted in 1884. 1 Mo. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Rev. Stat. 1899, p. 92. By § 4 of the Sup. ct. Rep. 581. And of course where it amendment the said court was given the is shown by the record that the state court same jurisdiction over lower courts within considered and decided the Federal ques- certain territory--embraced within which tion, the purpose of the statute is subserved. was Cooper county-as was possessed by And so controlling as to the existence of the the St. Louis court of appeals. As provid. Federal question is the fact that it was ac-ed by a prior Constitution, that of 1865, and tually considered and decided by the state continued by the Constitution of 1875, the court, that it has been held, although the St. Louis court of appeals was a court of general rule is that the raising of a Federal general appellate jurisdiction, but its judg. question in a petition for rehearing in the ments were not final in certain cases, among highest court of the state is too late, yet which were: a, cases where the amount in when a question is thus raised, and it is ac- dispute, exclusive of costs, exceeded the sum

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of $2,500: b, cases involving the construc- , whether attorneys' fees could be allowed up. tion of the Constitution of the United on the bond given in the Federal court had States or of the state of Missouri; c, cases not been raised, but because, although that where "the validity of a treaty or statute question had been raised and been decided, of or authority exercised under the United it was not one of the class of questions withStates is drawn in question;" as well as in in the purview of the exclusive jurisdiction other enumerated cases, not necessary to be of the supreme court of the state. And particularly referred to. In such cases, this seems to us to be the view held by the where the jurisdiction of the St. Louis court supreme court of Missouri, when, in conseof appeals was not final, the judgment of quence of the refusal to transfer the cause the St. Louis court of appeals was reviewa. to it, its superintending power over the ble by the supreme court of Missouri. Ibid. Kansas City court of appeals was invoked art. 7, § 12, p. 87.

through the medium of the application for By the amendment to the Constitution of writs of prohibition and certiorari. We so 1884, by which the Kansas City court of conclude, because, although in its elaborate appeals was created, in cases where the ac. opinion overruling the application for the tion of the St. Louis court of appeals had writs named, the supreme court declared been theretofore reviewable by the supreme that the question of the power of the state court of Missouri, it was provided that the court to award attorneys' fees on the inSt. Louis court of appeals should no longer junction bond given in a court of the Unithave appellate jurisdiction, but that writs ed States, contrary to the rule of damages of error, in such cases, should run directly prevailing in the courts of the United from the supreme court to the trial courts, States, had been raised in the case and had and this provision was made applicable to been decided by the Kansas City court of the Kansas City court of appeals which the appeals, the writs of prohibition and ceramendment created. By the amendment in tiorari would not be allowed, because such question superintending control over the a question was not within the appellate ju. trial courts in such cases was conferred up-risdiction of the supreme court of Missouri, on the supreme court. Ibid. § 5, p. 93. It but was within the jurisdiction of the lower thus resulted that the Kansas City court of appellate court. After fully stating the appeals, within the area of territory over contention below and its decision by the which its jurisdiction extended, had no ap- Kansas City court of appeals, the supreme pellate jurisdiction in cases where the court of Missouri said: amount in dispute, exclusive of costs, ex “We fail to discover from the record, any. ceeded $2,500, and where the cases involved where, how 'the validity of a treaty or stat. the construction of the Constitution of the ute of, or authority exercised under, the United States or of the state, and cases United States, is drawn in question,' or that where was drawn in question the validity a Federal question may be said to have been of a treaty or statute of or authority exer involved in the case." cised under the United States, and in other In other words, as the exclusive appel. cases not necessary to be mentioned. late jurisdiotion of the supreme court of

By the amendment to the Constitution of Missouri over cases which, by the amount 1884, the supreme court of Missouri was ex. involved, would otherwise have gone to the pressly, moreover, given general superin. Kansas City court of appeals, was conferred tending control over the courts of appeal, only in special cases, among other cases inby mandamus, prohibition, and certiorari. volving the construction of the Constitution Ibid. $ 8, p. 94.

of the United States and cases where "the After the Kansas City court of appeals validity of a treaty or statute of or authori. had affirmed the judgment of the Cooper ty exercised under the United States is county circuit court, the railway company drawn in question,” the court held that as filed a motion for a rehearing, and prayed the validity of the bond given in the circuit therein that in the event a rehearing was court of the United States was not ques. not granted the case should be transferred tioned, no claim made by the defendant of to the supreme court of Missouri. The mo-immunity under an authority exercised un. tion for the transfer of the case to the su- der the United States was embraced within preme court was pressed upon two grounds, the exclusive appellate jurisdiction conthe second of which was, in substance, that ferred by the Constitution upon the supreme the decision of the cause involved a Federal court of Missouri, and therefore such quesquestion, of which the supreme court of Mis- tion had been properly determined by the souri should take exclusive cognizance, be Kansas City court of appeals. We are concause of its appellate jurisdiction, "in cases strained to this construction of the opinion where the validity of a treaty or statute of of the learned court from the fact that it or authority exercised under the United elaborately discusses and demonstrates that States is drawn in question.”.

the defense of immunity from liability for The court, in overruling this motion, nec- attorneys' fees under the bond given in a essarily decided that* the case came within court of the United States was not an attack its appellate jurisdiction, and not within on the validity of the bond, and therefore the exclusive appellate power conferred by not within the cognizance of the supreme the Constitution on the supreme court of court of Missouri, and from the further fact the state. This doubtless rested upon the that in the course of the opinion the court predicate upon which the court had based said: its opinion, which was not that the issue “Neither the rules, the practice or pro

22 S. C.-29.

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cedure, nor the mode and manner of admin-claim of the absence of jurisdiction is with istering the law in the United States court, out foundation. applicable to the liability of bondsmen on Having thus disposed of the question of an injunction bond given in that court, can jurisdiction, we come to the merits of the in anywisc be drawn in question, so as to case. It suffices to say, for the reasons gir present a Federal question, in a suit in a en in the opinion in Tullock v. Mulvane, bestate court on the bond, when its validity, fore referred to, 184 U. S. 497, ante, p. 372, as in the case of Elliott v. Missouri, K. & T: 22 Sup. Ct. Rep. 372, that there was error R. Co., begun in the Cooper county circuit committed by the Kansas City court of apcourt, and now pending on appeal in the peals in affirming the action of the trial Kansas City court of appeals, is admitted, court in allowing, in the judgment by it and where no question as to the court's au rendered, attorneys' fees as an element of thority to order the bond as given is or damage upon the injunction bond contrary, was inade by the relator."

to the controlling rule on this subject enunIt results, therefore, under the view we ciated by this court, by which the courts of take of the opinion of the supreme court of the United States are governed in requiring Missouri, the court decided that as the case the execution of such instruments. presented merely a claim of immunity un. The judgment of the Kansas City court der an authority exercised under the United of appeals must be reversed, and the cause States, and did not involve, to quote the remanded to that court, with directions for language of the Missouri Constitution, the further proceedings in conformity with this drawing in question “the validity of an au- opinion. thority” so exercised, therefore, the Kansas And it is so ordered. City court of appeals was vested under the Constitution and laws of Missouri with fi. nal jurisdiction. But if, however, we were

(184 U. S. 169) to give to the opinion of the supreme court W. C. LYKINS and E. W. W. Lykins, Plfta. of Missouri the contrary construction, the

in Err., finality of the judgment of the Kansas City court of appeals in this case would be none

MRS. R. MCGRATH the less apparent. It is manifest, we con. ceive," from the opinion of the supreme court Publio landsrestriction on alienation by of Missouri, that if it had been deemed

Indian patentee-retroactive effect of con that a Federal question, not within the cognizance of the Kansas City court of ap

sent by Secretary of Interior. peals had been decided by that court, the consent of the Secretary of the Interior to a superintending power of control conferred

conveyance by an Indian patentee whose patby the state Constitution on the supreme ent prohibited allenation by him or bls heln court of Missouri would have been exerted without such consent may be given after the for the purpose of preventing the Kansas death of the Indian grantor, and when so City court of appeals retaining jurisdiction

given Is retroactive in its effect, and related of the cause. If, then, the action of the su

back to the date of the conveyance, so as to

cut off any claim of the heirs of such grantor preme court of Missouri can be held not to

to the land. have been rested on the phraseology of the Missouri Constitution, including within the

[No. 90.) exclusive appellate power of the Supreme Court of Missouri not claims of immunity Argued and Submitted January 13, 1902. arising from an authority exercised under Decided February 24, 1902. the United States, but only cases where was

IN ERROR to the Circuit Court of the ity exercised under the United States, then the necessary effect of the action of the su- sas to review a judgment for defendant in preme court of Missouri was this, that be an action of ejectment. Affirmed. cause it held to the opinion that it was impossible for a Federal question ever to arise

Statement by Mr. Justice Brewer: from a claim of immunity resulting from

Under and by virtue of the provisions of the exercise of an authority under the Unit a treaty between the United States of ed States in the giving of an injunction bond America and the Kas-kas-kia, Peoria, and in the courts of the United States, there cluded on the 30th day of May, 1854, pro

other confederated tribes of Indians, confore, under the Constitution and laws of Mis: claimed August 10, 1854 (10° Stat. at L souri, the action of the Kansas City court 1083), and an act of Congress approved of appeals was final.

March 3, 1859 (11 Stat. at L. 431, chap. It being then demonstrated that whatever 82). the southeast quarter of section No. view may be taken of the opinion of the su: fifteen (15), in township No. seventeen preme court of Missouri, that court neces(17), south of range No. twenty-three (23) sarily decided that the Kansas City court eust, in the territory, now state, of Kansas, of appeals, in passing upon the claim of im- and other lands, were on November 1, munity, was the final court in Missouri 1859, conveyed by the United States of where such question could be decided, it fol. America by letters patent to Ma-cha-co-melows that the writ of error properly ran to yah, or David Lykins, a member of the mid the Kansas City court of appeals, and the Peoria tribe of Indians, being “Peoria Ro

drawn in question the validity

of an author: I NUnited States for the District of Kan.

ror,

serve No. 14." The patent contained the of the execution of the deed, and made it following provision: "That said tracts valid as of that date In other words, the shall never be sold or conveyed by the gran- antecedent approval of the President was tee or his heirs without the consent of the mot a condition of the validity of the deed. Secretary of the Interior for the time be It was enough that he approved what had ing." On June 3, 1864, the patentee, David been done. It is true that it does not apLykins, conveyed the land to one Baptiste pear that the Indian grantor had died in. Peoria, by deed of that date, which deed termediate the making of the deed and the was on March 10, 1865, presented to the approval of the President (and in this reSecretary of the Interior, and by him ap- spect that case differs from the present), proved. Intermediate the making of the but the grantee from the Indian had died deed and the approval of the Secretary of during such interval, and only by way of the Interior, to wit, on August 14, 1864, relation could the action of the President be the patentee died, leaving the two plain considered as making effective an otherwise tiffs in error (plaintiffs below) as his sole void deed to a dead man. That case came heirs. This action in ejectment was com- before this court a second time (Lomas v. menced by them on March 18, 1899, in the Pickering, 173 U. S. 26, 27, 43 L. ed. 601, cirucit court of the United States for the 602, 19 Sup. Ct. Rep. 416, 417), and in the district of Kansas against the defendant, opinion then filed the scope of the prior de in possession and claiming title under the cision was thus stated: “The case was redeed to Baptiste Peoria. A demurrer to an versed by this court upon the ground that amended petition was sustained, and judg- the approval subsequently given by the ment entered in favor of the defendant, President to the conveyance was retroactive, whereupon this writ of error was sued out and was equivalent to permission before ex

ecution and delivery." Messrs. William M. Springer and It must therefore be considered as settled Robinson, Bouler & McCluer for plaintiffs that the consent of the Secretary of the In. in error.

terior to a conveyance by one holding un. Messrs. W. 0. Perry, D. B. Holmes, der a patent like the present may be given and Frank M. Sheridan for defendant in er after the execution of the deed, and when

given is retroactive in its effect and relates

back to the date of the conveyance. Mr Justice Brewer delivered the opin But the applicability of the doctrine of ton of the court:

relation is denied on the ground that the It is contended by the plaintiffs that the interests of new parties, to wit, the plaindeed from David Lykins, not having been tiffs, have sprung into being intermediate approved before his death, became thereby the execution of the conveyance and the apan absolute nullity; that title immediately proval of the Secretary. But one of the vested in them, free from any claim of the purposes of the doctrine of relation is to grantee in the deed; that they never asked cut off such interests, and to prevent a just for the approval of the Secretary of the and equitable title from being interrupted Interior; never consented that it should be by claims which have no foundation in given; never in any way ratified or assented equity. The doctrine of relation may be to the deed of their ancestor, and that the only a legal fiction, but it is resorted to Secretary was without any authority after with the view of accomplishing justice. the death of the patentee to approve the lat- What was the purpose of imposing a reter's deed.

striction upon the Indian's power of convey. The 11th section of the act of 1859, su- ance! Title passed to him by the patent, perseding in this respect the treaty of 1854, and but for the restriction he would have contained a general provision in reference had the full power of alienation the same asg to restricted patents to Indians in Kansas, any holder of a fee-simple title. The restric that the Secretary of the Interior should tion was placed upon his alienation in order cause them to be issued "upon such condi- that he should not be wronged in any salo tions and limitations, and under such he might desire to make; that the consider guards or restrictions, as may be prescribed ation should be ample; that he should in by said Secretary," and in pursuance of this fact receive it, and that the conveyance section the restriction referred to was should be subject to no unreasonable condi. placed in this patent. That the consent of tions or qualifications. It was not to prethe Secretary was effective, though given vent a sale and conveyance, but only to after the execution of the deed, was deter- guard against imposition therein. When mined in Pickering v. Lomax, 145 U. S. 310, the Secretary approved the conveyance it 86 L. ed. 716, 12 Sup. Ct. Rep. 860. In that was a determination that the purposes for case the patent to the Indian contained a which the restriction was imposed had been stipulation, authorized by treaty, that the fully satisfied; that the consideration was land should not be conveyed "to any person ample; that the Indian granbor had received whatever, without the permission of it, and that there were no unreasonable President of the United States." A *deed stipulations attending the transaction. All was made by the Indian holder of the title this being accomplished, justice requires on August 3, 1858, which was approved by that the conveyance should be upheld, and the President on January 21, 1871, nearly to that end the doctrine of relation attaches thirteen years thereafter, and it was held the approval to the conveyance and makes that the approval related back to the time' it operative as of the dats of the latter.

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