600

FEDERAL REPORTER,.

vol. 62.

versial relations, and this means a real controversy as to the facts involved in the suit. Federal jurisdiction is not founded in fie-tion, nor dOelil it depend upon' the arbitrary or capricious arrangement of the parties by the pleader. While it is doubtless proper, in the first instance, and for the, purposes of a decree binding all, to join as defendants all parties interested who do not desire to institute suit as plaintiffs, when the parties are before thecouct the court will, for the purpose of ascertaining its' jurisdiction, arrange them according to, their actual, interests, and place them on the side of the controversy to Which· they belong, and, if it then appears that the controversy is not oetween citizens' of different states, the condition contemplated by statute is wanting, and the court is without jurisdiction. The duty of' the court to inquire would seem to be as fully recognized as its power to act as justice may require when the facts are made to appear by the parties upon motion and evidence. stat. Aug. 13, 1888, § 5; Bland v. Fleeman, 29 Fed. 669; Marvin'\'. Ellis, 9 Fed. 367; Covert v. Waldron, 33 Fed. 311; Rich v. Bray, 37 Fed. 273; Williams v. Nottawa, 104 U. S. 209; Detroit City v. Dean, 106 U. S. 537, 1 Sup. Ct. 560; Railway Co. v. Swan, 111 U. S. '379, 4 Sup. Ct. 510; Cashman v. Canal Co., 118 U. S. 58, 6 Sup. Ct. 926. The interests of the Nebraska Cilley and the New Hampshire Cilley and Dearborn lie in the same direction. As sole legatees under the will of 1878, they claim, in substance, that all acts subsequent to 1878 should be annulled, and the will -of 1878 established, while Patten alone claims tha.t the will of 1884 is valid, and, unless defeated. by proper proceedings in the probate court, supersedes all prior wills; and this is the controversy. Place the New Hampshire Cilley and Dearborn on the side of the controversy to which they belong,· and there is no jurisdiction on the ground of diverse citizenship. The ingenious or capricious act of counsel in setting them up on the wrong side does not confer jurisdiction. For the above reasons, the bill is dismissed, with costs to the defendant Patten. COLT,Circuit Judge, concurs.

MAYOR,ETC., OF BALTIMORE

v. POSTAL TEL. CABLE CO.

February 23, 1894.)

(Gircuit £J9urt, D. MarYland.

1.

REMOVAL-JURISDICTION-AMOUNT IN CONTROVERSY.

, An was brought by a city in a, state court to recover a tax oJ: $2 for each of 509 poles maintained in the but tho declaration conclUded: "And plaintiff claims $10,000." Held, that the actual amount in dispute was but the amount of the tax, $1,018, and a circuit court could Dot take jurisdiction by removal.
,

2.

Defendant could Jl.ot' maintain that the real mattel,' in t:f;lpute was its right to keep in the streets without paying the tax and without being liable to the f!.ne M $10 per pole for nonpayment, imposed by the .. city ordiJlanee, and.' lUre penalty of having its poles remoY'ed; for in an

SAME.

MAYOR, ETC., OF BALTIMORE tI. POSTAL TEL. CABLE CO.

501

action at law to recover money, the amount in controversy is determined by the particular demand sued for, and not by any contingent 108s through the indirect or probative effect of the jUdgment, however certain such loss may be.

This was an action by the mayor, etc., of Baltimore, against the l)ostal Telegraph Cable Company to recover a tax of two dollars on each pole maintained by defendant in the city streets. The action was brought in a court of the state of Maryland, and removed . therefrom by defendant. Plaintiff moved to remand. William S. Bryan, Jr., for plaintiff. N. R. Preston and Geo. H. Bates, for defendant. MORRIS, District Judge. This case was originally brought in the court of common pleas of Baltimore city, and was removed upon the petition of the nonresident defendll,nt. The plaintiff now moves to remand the case upon the ground that the matter in dispute does not exceed, exclusive of interest and costs, the sum or value of $2,000, which, by the act of congress of August 13, 1888, is the sum required to give jurisdiction to this court, and to give the right of removal. The declaration contains but one count, and that is for the recovery of the tax of $2 for each of 509 telegraph poles alleged to be maintained by the defendant in the streets of the city 1)f Baltimore. The declaration concludes as follows: "And the plaintiff claims ten thousand dollars." The amount alleged to be due and unpaid by the single count of the declaration is the tax ·of $2 on each of 509 telegraph poles, and there was filed with the -declaration an account in which the only item is as follows:
Baltimore, Nov. 10, 1893. The Postal Telegraph Cable Co., to the Mayor and City Council of Baltimore, Dr. To license fee on 509 poles, at $2 per pole $1,018 Interest from June 15th, 1893.

To this account the mayor makes oath "that there is justly due and owing by the Postal Telegraph Cable Company, the defendant in said case, to the plaintiff, on the annexed account (the cause of action in said cause), the sum of $1,018, over and above all discounts." If the defendant had suffered judgment to go against it by default, the whole amount for which judgment could have been entered would have been $1,018, with interest and costs. It is true that, in actions of tort, it is the damages claimed which determine the .amount in dispute, but, in an action to recover a spedfic sum of money, the court examines the body of the declaration, and the cause of action set out, to determine what is the real sum in dispute. Hilton v. Dickinson, 108 U. S. 174, 2 Sup. Ct. 424; Lee v. 'Watson, 1 Wall. 337. In this case the declaration and the sworn account disclose that the real matter in dispute is $1,018, and not the sum demanded in the formal claim of damages. It is urged, however, that the real matter in dispute, so far as it affects the defendant, is its right to maintain its poles, as now erected in the streets of the city, without paying the annual tax of $2 for .ea,ch, and without being liable to a fine of $10 for each pole,

502

.

"

,'.'",

'I'

w!thout oeing 1n .,default of payment, and because the nght to recover III thlssUlt"depends upon the validity of the ordinance, and, if its validity is sustained in this8uit, the consequence to the, defendant will be that it will have,'&> pay a large annual tax, or submit to have its poles and its businelill:J d-estr?yed. ','," ' " " : " It istruei that 'Where l!;'bill in to abate a nuisance, or to set aside a: deed" 'Or 'for a\ decree giving I other ma.ndatory or preventive relief, it is the value of the property of which the defendant may be decree sought which is the test of jurisdiction, and not the claim of the complainant. Railroad Co. v. Market Co. v.Hoffman, 101U. 8. 1I2; Estes v. 183,ti 'SUp. Ct. 854. ,But it has been uniformly held in acctions at law, wheJ: the plaintiff's claim is for money, that the amouJ;li; iA ,controversy :is, determined by that particular demand the pJaintiff sues for, and not by any contingent loss which either sustaiJ;li through the indirect or probative effect of the jQ.dwent,however certain it may be that such loss will oc· cur. 8ecu,diyOo.v. Gay, );45 U. 8.123, 128up; Ot. 815; Elgin v. lfal'shall,: 106:(]1 S.578; ],L8up. Ct. 484; Gibson v. Shufeldt, 122 U. 8. 2'l:, 7 Sup. ct. 1066;' Clay Center v. Farm,ers' Loan & Trust Co., 145 U.. '8.225, 12 Sup. Ct. 817:i,LWashington,&G. R. Co. v. District of Columbia, l46,:{J. S.227 j l:3,8up. at. It seems to me clear, upon authority, that thissuitmJ.stbe remanded. .
,the"

et

, '. ' I '

at.

OF TRANflCRIPT OF RECORD ON ApPEAL.

(Circuit Court of AppeaIs,Fifth, Circuit. November 28, 1893.)
MANDAMUS-COMPEI,LING

On, an appeal to the cil.'cuit, ,court of,appeals that court will not grant ,appellants' petition for a IDlindamus to the Clerk of the lower court to "certify and' transmit a transcript of the record, merely to determine in ,advance whetl:\er a certain deposition. is part of the record, where the , ordinaryproce4¥1' ,for the' pUlJlose.

,Appeal theOirouitCourt of the United States for the South· ern District of Mississippi. On application for mandafnus. Wade,R If. :Qabney, ,t,Qr,a,ppelleel:1\' , Before PARDEE andlfeOORlfICK, Circuit Judges, and LOCKE. District Judge. ' r Circuit Jndge. We do not deem it to add to what we have said in cases hereinbefore decided in reference to the duty of the clerk of the circuit court in making the return to a writ of error or order granting an appeal. For the purposes of this case, our views on the snbjectare snffioiently expressed in the cases of Blanks v. Klein, 1 Q.,iC. Ai 254, 49 Fed. 1; Pennsylvania C6.,_