Burlingame v. Manchester, 44 App. D.C. 335

Burlingame v. Manchester

44 App. D.C. 335 | D.C. Cir. | 1916

Mr. Justice Van Orsdel

delivered the opinion of the Court:

It is urged that, inasmuch as this court on the former appeal held that the lower court was without jurisdiction to entertain the canse, and for that reason affirmed the decree dismissing the bill, it was likewise without jurisdiction to assess costs. Passing the consideration of the application of the rule contended for to a case where the court is totally without jurisdiction of either the parties or the subject-matter, we come at once to the real question here involved. Our decision turned upon the jirrisdiction of the equity court to entertain the particular cause in the light of the law and facts applicable thereto. There is a well-defined distinction between the lack of jurisdiction to grant equitable relief in a given case, and the want of jurisdiction which totally deprives a court of power to proceed. Here it required a trial on the issues of fact to determine whether the court had power to grant equitable relief. The distinction is clearly stated in Illinois C. R. Co. v. Adams, 180 U. S. 28, 45 L. ed. 410, 21 Sup. Ct. Rep. 251, as follows: “It may undoubtedly be shown in defense that plaintiff has no right under the allegations of his bill or the facts of the case to bring suit, but that is no defect of jurisdiction, but of title. It is as much so as if it were sought to dismiss an action of ejectment for want of jurisdiction, by showing that the plaintiff had no title to the land in controversy.” And in Curtiss v. Brown, 29 Ill. 201, the court said: “Tn many cases the question of jurisdiction is considered as distinct from that of power. We often find the jurisdiction denied, where the 'poiver exists, but ought *338not to be exercised, and in this sense is tbe word jurisdiction usually used, when applied to courts of chancery. Where there is a want of power, the decree is void collaterally, but where there is said to be a want of jurisdiction merely, it is only meant that it would be erroneous to exercise the power, and the decree would be reversed on appeal. It means a want of equity, and not a want of power.”

That the supreme court of the District of Columbia had jurisdiction of the subject-matter and the parties is not contested, and, indeed, it cannot be. It follows, therefore, that where, as in this instance, the want of jurisdiction is due to the failure of the plaintiff to make out a case calling for equitable relief in a cause, the subject-matter of which is within the general jurisdiction of the court, power still resides in the court “to put the wheels of justice in motion, and to proceed to the final determination of the cause upon the pleadings and evidence.” Illinois C. R. Co. v. Adams, supra.

Appellants brought their action in a court of competent jurisdiction with full power to adjudicate the matters in controversy, but the bill was dismissed, in the language of the court in Hawes v. Oakland (Hawes v. Contra Costa Water Co.) 104 U. S. 450, 26 L. ed. 827, “because the' appellant shows no standing in a court of equity, — no right in himself to prosecute this suit.” Appellants were in a proper court, but not with a proper cause of action. “The right to bring a suit is entirely distinguishable from the right to prosecute the particular bill. One goes to the maintenance of any action; the other to the maintenance of the particular action.” Venner v. Great Northern R. Co. 209 U. S. 24, 52 L. ed. 666, 28 Sup. Ct. Rep. 328. With full jurisdiction to try the issues and enter a decree, the contention that the court was powerless to decree costs is without merit.

Respecting that part of the motion relating to the taxation of costs, it is settled in this District that “the decision upon a question of costs, when independent of the main questions in litigation, is not ordinarily a subject for appeal.” Washington & *339G. R. Co. v. American Car Co. 5 App. D. C. 524, 548. In the present case, not only is the question raised upon motion independent of the questions in litigation, but proper steps were not taken in the court below to review the action of the clerk in assessing costs and to secure a retaxation thereof. The proper course was by rule to show cause, specifying with particularity the objection to the manner in which the costs have been taxed.

It matters not that the court below took cognizance of the motion to the extent of ordering the retaxation of the costs as to certain witnesses. This could have been done without motion if brought to the attention of the court. The assessment of costs is a matter reposed largely in the sound judgment of the trial court, and the action of the court in the proper exercise of that discretion will not ordinarily be reviewed. The rule is clearly stated in Williams v. Getz, 17 App. D. C. 388, which involved, among other things, an appeal from an order of the court below denying a motion to retax costs. Chief Justice Alvey, speaking for the court, said: “With respect'to the alleged errors in the taxation of the costs in the former action, no appeal will lie to this court. To entertain appeals in such cases would not only interfere with the finality of judgments, but would open the door to abuse, as means of delay, in the execution of judgments. The taxation of costs, in the cases where they accrue, is ordinarily a mere clerical act, performed under the supervision of the court. For any errors in the taxation the remedy for their correction is quite simple. If either party be dissatisfied with the taxation by the clerk, he may apply to the court for a rule to show cause why the clerk should not review the taxation first made by him. But in the application for such rule, the party should be careful to specify with particularity in what respect the taxation is erroneous. 2 Tidd, Pr. 9th ed. 990.”

The judgment is affirmed, with costs. Affirmed.

A motion for a rehearing was overruled. January 22, 1916.