662 ooDlplattiantlf
I'EDERALltEPoR!l'ER,
vol. 50. lao-
gnag:eof the' decision, respondents',eounsel urges that the 9-U?stlOO ?f profitifandthe fact of waiver were not before the court. This 15 a mlStake. 'In'the opening sentences of the opinion the court say:
'entitled furet<>ver ihem ,and, to avoid the
"Tl)ecas.tl went to a mastet, reported * * *' tbatthe appellees bad sustained' damHges to the extent of $2,970.50, and that they waived all claims to 'the profits realized by the infringement. " The cQurt, therefore, wa.s D}anife!ltly inquisitive and considerate of the and, having' decided' in its final judgment that the comare entitled to" a recovery of the profits realized from the infringing ,sides," this court must execute its mandate, and cannot evade it by assumi"Dlf that the court does not mean what it says. Complainants, theretore, are entitled to a finnl decree for the sum of 8186.50, profits realized by respondents on infringing sales, and costs, and it is 80 ordered..
WESTERN ,UNION
TEL. Co.
11. AMERICAN
BELL TEL. Co.
(emuit Coun. EQ111'1'T.
MaB,ach:u,ettI. lIay 28, 1892.)
At a hearing before a master it. was agreed that, prior to the filing of bis report, · draft IIhoulcl be ,eublDitted ;tocwnsel, in order that they might present objections theretQ.T1:Ie master, filed the report without so doing. BubseqlleDt1y he withdrew it by' conBtlnt of counsel, other proceedings were bad before ,bim,:and objeotions :presented to tbereport. Held, that the cause report .had eyer j)eenfi.\ed, aOod that. defendant bad acquired no such right as'woUld exclude the 'operation'of the general rule that, where defendant demanus no alllrtnative rellef, tloblPll&inant may. upon paying costB,dismiss his bill at :any before interlocutol.';y or1inal decree.
,p:UJNTJr_MAsTllR'S RBPOR'1'.
In Equjty.Bill by the WesWrp.Union Telegraph CompRny and others American Bell'lie,li;}:>llone Company for discovery and ac{'ounting. . I:I:Elard on motion of complainants to dismiss without prejudice. Gran,red. JoBiah 11. 'Benton, Jr., {or compla:inants. William' G. Ru.sseU and E. Rockwood Hoar, for defendant. ants vember was heard on motion of complainthe bIll without ,prej9-dice, on payment of costs. On Nothe filed the present bill against the deaccount, under a certain contract. The defendant ",nswered, denying .the equities of the bill. The comOn May 28,1886, the case waE\ reJe#ed" to a master by of counsel, and the following order was'made py :the court: " '. "And of parties filed, it is ordered Lhatthe above-name4causo. be iefe1'l'eU to HOD. John Lowell as master
WESTERN UNION TEL. CO. V. AMERICAN BELL TEL. CO.
663
to hear the parties and report the facts, with ,such part of the testimony as either party shall request. and bisruJinj:ts on any questions of law arising in . the case." An examiner was subsequently appointed and testimony was taken by both parties. This evidence was snbmitted to the master, and oral arguments were made before him by counsel and printed briefs filed. At the hearing before the master, it was agreed that,prior to the filing of his report, a draft report should be submitted to counsel, in order that they might present objections thereto. On February ,19. 1890, the master filed a report, without having submitted the same to counsel. The next day, upon being reminded of the agreement of counsel, he withdrew the report from the files of the court. and counsel entered into the following stipulation: "It is agreed that the paper filed in this case as the master's report shall be taken into his custody, and considered as not filed, with all accompanying documents." Thereupon the draft report was returned by the clerk to the master. Thirty days were then allowed by the master to each party to submit objections to the report, and the time was subsequently extended to April 25th. Upon that date the complainants applied to the master for time to take further testimony. This application the master refused, and ordered that all objections to the draft report should be made on or before May 7th. On that day the complainants made another application to take further evidence. which the master denied, and ordered that objectipns to the draft report should then be made. Thereupon objections to the report were filed with the master, the counsel for the complainants filing their objections under protest. On June 1st the complainants filed their motion to dismiss the bill without prejudice, upon payment of costs. On June 3d the complainants requested the master to take no further action, and make no report in the case, pending the decision of their motion to dismiss. On August 11th the master filed his report in court, with all the evidence and accompanying documents. Upon the foregoing statement of facts, I do not think there can beany question as to the time when the master's report must be considered as filed. Under the agreement of counsel, and by the subsequent action of the master, no report was actually filed until August 11th. Whatever was done February 20th ,with respect to filing the report was an inadvertence on the part of the master, and can affect in no way the rights or standing of the parties to this suit. In the consideration of this motion I must treat the master's report as not filed until August 11th, or mora than two months after the filing of complainants' motion to. dismiss. We have, therefore, this single proposition to decide: whether, under these circumstances, the cOlllpl.ainants are entitled to dismiss their bill without prejudice, upon payment of costs; and this is a question purely of equity practice. It is admitted that, under equity rule 90, this court is governed by the equity practice of the high court of chancery of land as it existed in 1842, the time of the adoption of the rule. Under that practice, the general rule was that a complajnant might dismisa his
664
FEDERAL REPORTER,
vol. 50.
bill uport payment of costs at any time before interlocutory or final decree, and this has been the general practice both in the federal and state courts. There are, however, certain well-recognized exceptions to this rule, aUdihe question which arises upon this motion is whether the defendant comes within any of these exceptions. These exceptions are based upon the principle that a complainant should not be permitted to to the defendant. dismiss his bill when such action would be But this does not mean that it is within the discretion of the court to deny the complainant this privilege under any circumstances, where it might think such dismissal would work a hardship to the defendant, as, for example, where it might burden him with the trouble and annoyanceM defending against a second suit; but it means that if, during the progresS of the case, 'the defendant has acquired some right, or if he seeks or has become entitled toaflirmative relief. so that it would work an actual ,prejudice against him to have the case dismissed then, the complainant will not be permitted to dismiss his bill. To hold otherwise would be to do away with the general rule altogether, and to make the qdestion simply one of discretion on the part of the court. Where issues are framed out of chancery, and decided by a jury, that would be such a determination of the case as to forbid the complainant to dismiss his bill without prejudice, because the defendant has acquired a new right; ,and so where a master has filed his report, and his findings are atairl'stthe complainant, I do not think, for the same reason, he should be' allowed to dismiss his bill. Again, where the defendant has filed across bill, or where he seeks affirmative relief in his answer, or where, without specifically asking for affirmative relief in his .answer, the evidehCe discloses that he is entitled to such relief, these are instances where the' complainant should not be allowed to dismiss his bill. But where there has been no interlocutory or final decree, and no determination'dfthe cause in any way, and the defendant seeks no affirmative relief, in other words, where the bringing of another suit will merely submit him to the annoyance of a second litigation, the complainant has a right to dismiss his bill without prejudice, upon payment of costs. Upon the facts presented in this case, I do not think the defendant comes within any of the exceptions to the general rule. It is not contended that the defendant seeks any affirmative relief in this case, and consideration. The therefore that class of exceptions requires no only question is whether there has been any such determination in the case as to confer on the defendant sotne new right. lithe master had filed his report before the motion to dismiss, the situation would have been different; but, as the case stood on June 1, 1891, when the complainants filed their motion to dismiss, there had been no determination by the cuurt or by the master in this cause. The draft report submitted to counsel by the master was in nQ sense a determination in the cause. He might have modified or wholly reversed his findings upon the presentation of objections by counsel. Until his ultimate conclusions were embo,lied in a final report, and filed in court, he had in fact legally made no findings, aIidthe present case is no different from what it would
WESTERN UNION· TEL. CO. tI. AMERICAN B]!)LL TEL. CO.
665
have been if the complainants had moved to dismiss their bill before reference to the master, or had moved to dismiss some time during the hearing before the master and before the submission of his draft report. It seems to me that this case is quite parallel with the leading case of Carrington V. Holly, 1 Dickens, 280, where the plaintiff filed his bill to establish his right to certain estates, and an issue to a jury was directed. The plaintiff then moved to dismiss his bill, with costs, and the defendant applied to have the order granting this motion set aside. Lord HARDWICKE said: "There hath not boen any determination. The directing of an issue is merely to satisfy the conscience of the c0urt prefatory to giving judgment. '.rhat issue hath not been tried, and till there hath been a determination,..! bold a plaintiff may, in any stage of the cause, apply to dismiss his bill, upon payment of costs. Had there been a decree, It would have been otherwise. So, likewise, it would have been had the issue been tried and a verdict in favor of the defendant."
While it cannot be said that the authorities are entirely harmonious, I think the leading cases in this country and in England support the views herein expressed. CarringfDn V. Holly. supra; Handford V. Storie, 2 Sim. & S. 196; White V. LYrd Westmeath,Beat. 174; Cunia v. lloyd, 4 Mylne & C. 194; Blu,ck V. Colnaghi, 9 Sim. 411; Booth v. Leycester, 1 A. R. Co. V. Un-ion Keen, 247; Coope:r V. Lewis, 2 Phil. Ch. 178; Rolling Mill Co., 109 U. S. 702, 3 Sup. Ct. Rep. 594; Badgerv. Badger, 1 Cliff. 237; American Zylonite CO. V. CeUuloid Manuf'g Co., 32 Fed. Rep. 809; SteVerl8V. The Railroads, 4 Fed. Rep. 97; Electrical Accumulator Co. v. Brush Ele.ctric Co., 44 Fed. Rep. 602; Conner v. Drake, 1 Ohio St. 167; Cozzensv. Sisson, 5 R. I. 489; Dawson V. Arney, 40 N. J. Eq. 494, 4 Atl. Rep. 442; Saylor'8 Appeal, 39 Pa. St. 495; Cummins V. Bennett. 8 Paige, 79; Jl(meman V. Fairbrother, 7 Blackf. 541; Watt V. Orauiforf}" 11 Paige, 470; Bullock V. Zilley, 5 N. J. Eq. 77; Bahb v. Mackey, 10 Wis. 314; Seymour v. Jerome, Walk. (Mich.) 356. The motion to dismiss the bill without prejudice, upon payment of costs, is granted.
66tJ-'
" ," I L'jftm'BAL BEPOBTEB ,: \ ,)'1;::, ,r, :' ;
voL 60. ,-
'!
8lilMiiES
WHITNlllY ' AD,
, (CCrcuit COurt, E. D.LoutsiaMiJuue e,18ft.) , i, :: '
No 19 (Jl8
1.
i. S...
",' ,The Statelliu Louisiana has jurisdiction of a 8uit b1 an atrorneyresidirig ill: t'hat state agMnst'anonresidentadministratorappointed by a Louisiana court, to enforce an attorney'8lien on a judgment recovered by the at,tor,the "
: iAPl'01NhiBN'J' llT DOMESltIO, COURT.'" , '
OJ'
Jmn8TIUoroa-
'Jurisdiction ls'nbta1tected, by the fact that the state laws give nelusi'" r of such a, 8uitto ,the probate CC1Ul't of the 8tate. ' It ATToB!n1:t's LIIlN-COl'lTqT&IIlNT FEES. ' 'A,APODtrlWt made by,an with the tutor and tutrix of minor heirs for a oflOl1erClmt. on 'the reoovllr,Y,. if any, ina suit brought by the atl6rnlly to' enforce Iii olaim Of the heirs. there beingnd means of paying ootlDsel fee. except out of the recovery. is valid, and entitles the attorney to alien on the reCO'9',
011' STATB COURT.
'. ,
"
,
,ttiEquity. , Suit 1:Jjr, ThOIIj8S iT. Semmes, against W.W. WhitneYt of the of. Myra Clark Gaines, to enforce an attomey'S lien. Decree forplairitiff.' , for Mlllplainant. ':ROUH' & Grant, for defendant. 'B_I:.LINGS, l>istrict JUdge:'This is a suit in which an attorney at lalt wM cdhducted the case ,for the plaintiff, terminating in a judgment in h'Eir'favol',sues in equity to recover his fee, and have it declared to be a lien l1pon the The firetquestionis as to' jurisdiction. "The plaintiff is a citizen of LouiSiana" and the defendant, though 'administrator of an estate who is by the Louisiana mortuary. icourt, isa. citizen of Massachusetts. The case of Rice v. Houatoo, 13 Wall. 66, isl conclusive as to the q:'lrejmm'of general jUl'bldiction, f., ,it settles the law to, be that, the parties being citizens of different states, jurisdiction is not defeated' because one is administrator appointed by the courts of the state of which the other is a citizen. Code Proc. La. arts. 924, 983, undoubtedly give, so far as the courts of the state of Louisiana are concerned, exclusive jurisdiction to the probate court. But this state legislation has no effect to prevent the circuit courts of the United States from exercising jurisdiction. That jurisdiction springs from tho putting into operation by congress the constitution of the United States, and cannot be impaired by the states. Lawre:nce v. Nelsrm, 143 U. S. 215, 223, 12 Sup. Ct. Rep. 440, and Payne v. Hook. 7 Wall. 425. This court has jurisdiction, and can render a decree which would, as to the amount of the debt and the existence of the lien, conclude the administrator and the succession. The lien, being that of a solicitor who has recovered a judgment, upon that judgment springs both from the doctrine of the equity courts and from a statute of the state of Louilliana. The lien gives almost a prcprietary interest in the judgment. It would be only the residue of the judgment, after deducting the amount of the solicitor's fee, which would,
,.1