Eustis v. City of Henrietta

74 F. 577 | 5th Cir. | 1896

PARDEE, Circuit Judge.

The city of Henrietta instituted a suit at law in the district court for the county of Clay, state of Texas, against William Gf. Eustis and others, to recover certain real estate situated iu the city of Henrietta, state of Texas, and, in default of such recovery, to recover certain sums alleged to be due the city of Henrietta for taxes on the property claimed. The defendants removed the case to the United States circuit court for the Northern district of Texas, and, in their petition fbr removal, averred that the sum or value in controversy, exclusive of interest and costs, exceeded the sum of $2,000. The case, after removal, was proceeded with in the circuit court, and, after various pleadings, resulted in a trial before the court and a jury. On this trial, the parties entered a written consent, in accordance with which a judgment was entered. This consent, among other matters, recited as follows:

■‘It is further agreed that this ease, together with all the pleadings, depositions, and record evidence, of every character and description, be transferred to the equity docket; and that the lien of plaintiff for the taxes aforesaid, as set forth in the petition of plaintiff, be foreclosed at once against the properties, respectively, for the amounts due; and that a decree be so entered, subject, however, to the payment of said, taxes, as above agreed to, in which event a release of said judgment and decree be entered.”

In pursuance of this stipulation, the cause was entered upon the equity docket, and a decree entered in accordance with the terms mentioned. The defendants prosecute a writ of error to the judgment at law, and an appeal from the decree on the equity side of the court.

The defendants below (plaintiffs in error and appellants here), having procured the removal of the cause to the circuit court, upon an averment that the amount in controversy was over $2,000, ought not to be heard in this court to suggest, as they do in their first assignment of error, that tRe court Rad no jurisdiction to render tlie judgment and decree, because tRe amount in controversy was less tRan tRe minimum jurisdiction of tRe court. As a matter of law, tRe jurisdiction of tRe circuit court depended upon tRe state of facts at tRe time of removal. TRe value, as set fortR in tRe petition of removal, not being questioned by tRe party against wRom tRe removal was made, cannot be questioned Rere by tRe removing and losing party, solely because tRe judgment finally rendered is less tRan tRe jurisdictional amount of tRe circuit court.

It appears to be settled by tlie supreme court that while a writ of error may lie to a judgment rendered by consent, and an appeal may be taken from a decree by consent, yet, on ajipeal or error, tlie court will not consider any errors tRat may be assigned wRicli were in law waived bv tRe consent. Railroad v. Ketchum, 101 U. S. 289, 295; U. S. v. Babbitt, 104 U. S. 767, 768; Nashville, C. & St. L. Ry. Co. v. U. S., 113 U. S. 261, 266, 5 Sup. Ct. 460. In the last-mentioned case, the supreme court says:

“But the insurmountable difficulty is that the former decree appears upon its face to have been rendered by consent of the parties, and could not, therefore, be reversed, even on appeal. Courts of chancery generally hold that from a decree by consent no appeal lies. 2 Daniell, Ch. Prac. c. 32, § 1; French v. Shotwell, 5 Johns. Ch. 555; Winchester v. Winchester, 121 Mass. 127. Although that rule has not prevailed in this court under the terms of the acts of congress regulating its appellate jurisdiction, yet a decree which appears by the record to have been rendered by consent is always affirmed, without considering the merits of the cause.”

Judgment and decree of the circuit court affirmed.