NATHAN V. ROCK SPRINGS (Circuit Court of Appeals, Sixth Circuit. No. 4444. 1. Courts 328 (6) —Jurisdiction of federal court determined by amount claimed in peti tion. Jurisdiction of a federal court is determined by amount claimed in petition, except where it appears from petition that a part of claim is fictitious and inserted solely to invoke jurisdic tion of court. 2. Courts 328 (9)-Claimed attorney's fee considered in determining whether amount in tion of federal court. Claim for attorney's fee, under Ky. St. § 4775, in action for damages for alleged fraudulent issuance of warehouse receipts, in viola tion of section 4771, may be considered in determining whether amount involved is sufficient to sustain original jurisdiction of federal court; such claim not being fictitious, or made in bad faith. In Error to the District Court of the United States for the Western District of Kentucky; Charles I. Dawson, Judge. Action by Emil Nathan against the Rock Springs Distilling Company. Judgment of dismissal, and plaintiff brings error. Reversed and remanded. Thomas E. Sandidge, of Owensboro, Ky. (W. P. Sandidge, of Owensboro, Ky., and Henry H. Furth, of St. Louis, Mo., on the brief), for plaintiff in error. that these receipts were issued to the H. L. Griesedeck Distilling Company, and purchased from that company by Nathan for the sum of $2,877.04 in cash, and the further agreement on the part of Nathan that he would assume and pay the accrued storage and tax charges, amounting to $600.50. The total sum of $3,510.92 sought to be recovered as damages in this action include the sum of $2,877.04 cash paid by the plaintiff to the H. L. Griesedeck Distilling Company, $33.80 expenses of a trip by plaintiff from St. Louis, Mo., to Owensboro, Ky., preparatory to instituting this suit, and $600 attorney fee. To this petition the defendant answered, denying all allegations of fraud, and specifically denying that the matter in controversy exceeds, exclusive of interest and cost, the sum or value of $3,000, and by an amended answer alleged that the plaintiff in no event was entitled to recover expenses or attorney fees, and that these items could not be considered by the court as any part of the amount in controversy. To this amended answer the plaintiff filed a general demurrer, which demurrer was overruled by the court, and the action dismissed, for the reason that on the face of the petition this cause does not involve a dispute or controversy exceeding the sum or value of $3,000. The plaintiff in error insists that the trial court erred to its prejudice in overruling his demurrer to the amended answer, and in entering a decree dismissing the petition and for costs in Louis I. Igleheart, of Owensboro, Ky., favor of the defendant. for defendant in error. [1] The jurisdiction of a federal court is Before DONAHUE, MACK, and MOOR determined by the amount claimed in the peMAN, Circuit Judges. DONAHUE, Circuit Judge. Action was brought in the District Court by Emil Nathan, a citizen and resident of Missouri, against the Rock Springs Distilling Company, a Kentucky corporation, having its chief office and place of business in Daviess county, in the Western district of the state of Kentucky, to recover damages in the sum of $3,510.92 for the alleged false and fraudulent issuance of 10 warehouse receipts in violation of section 4771 of Carroll's Kentucky Statutes 1922, Session Acts 1891-9293, c. 256, p. 1390. It is further alleged that each of these warehouse receipts falsely represented and stated that the defendant had received and stored in its warehouse 5 barrels of whiskey, or a total of 50 barrels containing in the aggregate 2,483.96 proof gallons, 103 proof; tition, and not by the amount that the plaintiff may ultimately recover. The only exception to this rule is where it appears from the petition that a part of the claim is fictitious, and inserted in the petition in bad faith and for the sole purpose of invoking the jurisdiction of the court. Such a claim will, of course, be disregarded in determining the amount in controversy. Plaintiff bases his right to recover damages, including his expenses and attorney fees, on section 4775 of Carroll's, Kentucky Statutes 1922, above cited, which provide that any warehouseman or person who shall willfully and knowingly violate any of the provisions of this article shall be guilty of an offense for which he may be fined or imprisoned, and that "every person aggrieved by the violation of any of the provisions of this article shall have and maintain an action against the person or corporation vi 10 F.(2d) 269 olating any of the provisions of this article to recover all damages, immediate, consequent, legal and extraordinary, which he or they may have sustained by reason of such violation as aforesaid, whether such person may have been convicted or not." Plaintiff further relies upon the decision of the Kentucky Court of Appeals in Yantis v. Burditt, 2 Dana (32 Ky.) 254, construing a like statute, which he claims is not nearly so comprehensive, in its provision as to the damages that may be recovered, as the one now under consideration, and also upon the later case of Kentucky Land & Immigration Co. v. Crabtree, 118 Ky. 395, 80 S. W. 1161, 4 Ann. Cas. 1131, which discusses at some length the decision in the Yantis Case, and distinguishes between the statute under consideration in that case and the bond which was the basis of the action in the later case. The defendant insists that such a construction would be wholly inconsistent with the public policy of the state as declared by the Court of Appeals, and cites a number of cases in support of this contention. It is also claimed on behalf of the defendant that, even if plaintiff is entitled to recover attorney fees, they must be taxed as cost, and not included in the estimate of the amount in dispute or controversy. If the plaintiff is entitled to recover attorney fees, he must do so under the provision of the statute authorizing a recovery for damages immediate, consequent, legal, and extraordinary. If he is not entitled to recover attorney fees as part of his damages, then he is clearly not entitled to recover such fees as costs. It was held by the Supreme Court in Brown v. Webster, 156 U. S. 328, 15 S. Ct. 377, 39 L. Ed. 440, that interest on the principal sum might be included for the purpose of jurisdiction in an action for damages for breach of warranty of title, where under the law of the state in which the action arose the measure of damages was the price paid, with interest. If, under this statute of Kentucky, attorney fees may be included in the damages that plaintiff is entitled to recover, then this item becomes an elemental part of the total damages the plaintiff has suffered, and must be included, the same as all other items of damages in determining the jurisdictional amount. Springstead v. Crawfordsville State Bank, 231 U. S. 541, 542, 34 S. Ct. 195, 58 L. Ed. 354, and cases there cited. [2] Without intending in any way to express an opinion upon the plaintiff's right to recover attorney fees in this action, we are nevertheless of the opinion that his claim On March 6, 1923, an action was commenced in the District Court by the Baldwin Law Publishing Company, an Ohio corporation, against Karl Mog, charging infringement of a copyright, owned by the plaintiff, of a publication known as the "General Code of the State of Ohio," and generally known and referred to as "Throckmorton's Code," and praying for an injunction and accounting. On October 25, 1923, an order was entered by the court dismissing the bill of complaint, dissolving the temporary injunction, and releasing a writ of seizure for certain books described in the complaint, upon the representation of counsel for the respective parties that the matters in dispute had been settled to their accord and satisfaction. On November 16, 1923, the Baldwin Law Publishing Company, through its president, W. E. Baldwin, filed a motion to vacate and set aside the alleged settlement, and to vacate the order and judgment of the court based thereon, for the reason that plaintiff had not consented to any such settlement, and that counsel representing the plaintiff was wholly without authority to make the same. Upon the hearing of this motion, it appeared from the testimony of Forrest F. Smith that, as a condition of the settlement, it was agreed and promised on the part of the plaintiff that it would not oppose such action as the prosecuting attorney of Hamilton county and the district attorney of the federal court might see fit to take in reference to dismissing indictments then pending in the Hamil ton county common pleas court and the federal court of the Southern district of Ohio, Western division, which indictments grew out of and were based upon the alleged infringement of plaintiff's copyright. Thereupon a supplemental motion was filed by plaintiff, in which it is alleged that plaintiff had no knowledge, prior to the time this testimony was given, that the settlement contained any such provision or agreement, and urged this as an additional ground for vacating and setting aside the judgment. The District Court, upon consideration of all the evidence, overruled the motion and supplemental motion to vacate, and set aside the former judgment and decree, and dismissed the same at plaintiff's cost. The plaintiff appeals. Forrest F. Smith, of Columbus, Ohio, in pro. per. Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges. PER CURIAM. [1] While there is a direct conflict in the testimony material to the issues presented by these motions, nevertheless it appears by a clear preponderance of the evidence that the plaintiff company authorized its counsel to enter into the agreement of settlement upon the terms and conditions named therein, and that substantially the only complaint made by the plaintiff through its president, Baldwin, after the decree was entered, was in reference to the fee charged by its counsel, which fee plaintiff considered excessive. This conclusion natu rally follows from the testimony of the witnesses Atkinson and Hogan, to the effect that a few days after plaintiff had been notified of the settlement, and advised that the fees of its counsel would be $1,500, Baldwin, the president of the company, called at the absence of Mr. Smith, and, without making office of Atkinson, Smith & Hogan, in the any other objection to the settlement, said to Mr. Hogan, in the presence of Mr. Atkinson: "Why, Mr. Hogan, do you think I would have accepted this settlement had I known your fees were to be that size?” This testimony is not denied by the plaintiff, and was evidently believed by the District Court. [2, 3] It is further contended on the part of the appellant that this agreement was wholly void, in that it contained a provision for compounding, abandoning, or agreement to abandon, a criminal prosecution already commenced. However that may be, it cannot affect the disposition of these motions. Litigants may not trifle with courts. When the court is informed that the matter in controversy has been settled and adjusted by the parties themselves, and the terms and conditions are not disclosed, the court has a right to presume that such contract of settlement is lawful. A decree dismissing the action, made and entered at the request, and with the consent, of the parties, and upon the representations that the cause is settled and adjusted, will not be vacated merely because a dispute has later arisen between one of the litigants and Smith W. Bennett, of Columbus, Ohio, his counsel as to fees; nor will the decree be for appellant. vacated because the contract of settlement Stuart R. Bolin, of Columbus, Ohio, for contains terms and provisions in violation of appellee. law. In such event, the court will leave the 10 F.(2d) 271 parties where they have placed themselves by their own illegal contract. For the reasons stated, and without expressing or intending to express any opinion as to the legality or illegality of this contract of settlement, the decree of the District Court is affirmed. MARIN v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. January 6, 1926.) No. 4451. 1. Criminal law 742(1)-Credibility of witnesses is question for jury. Credibility of witnesses is question for jury. 2. Witnesses 277 (4)-Cross-examination of defendant with reference to prior indictment, concerning which he testified on direct examination, held proper. Cross-examination of defendant with reference to prior indictment, concerning which he testified on direct examination, held proper. 3. Criminal law 441-Refusal to require government to produce affidavit and search warrant on file in office of issuing justice held not error. Refusal to require government to produce affidavit and search warrant, on file in office of issuing justice and equally available to defendant, held not error. 4. Criminal law 1036(2), 1054 (1)-Court's cross-examination of defendant, to which no objection or exception was taken, held not prejudicial error. Court's cross-examination of defendant, to which no objection or exception was taken, held not prejudicial error. 5. Criminal law 1056(1)-Alleged error in instructions not considered, without exception, unless miscarriage of justice appears. Alleged error in instructions will not be considered, in absence of exception thereto, unless miscarriage of justice appears. In Error to the District Court of the United States for the Northern Division of the Eastern District of Michigan; Arthur J. Tuttle, Judge. Morris Marin was convicted of conspiraey to violate the National Prohibition Act, and he brings error. Affirmed. H. A. Behrendt, of Detroit, Mich. (Milton A. Behrendt, of Detroit, Mich., on the brief), for plaintiff in error. DONAHUE, Circuit Judge. The plaintiff in error was jointly indicted with Charles Phillips, Holmes Morton, and William Sagamore for conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). Morton and Sagamore entered pleas of guilty. Marin stood mute, and the court directed a plea of not guilty to be entered for him. It does not appear from the record that Phillips was arrested or tried upon this indictment. The trial of Marin resulted in a verdict of guilty, upon which verdict the court imposed sentence. There are a number of assignments of error, but counsel for plaintiff in error summarizes these as follows: First, that the trial court erred in overruling the defendant's motion for directed verdict at the close of all the evidence; second, error in the admission and rejection of evidence; third, error in the charge; fourth, error in the conduct of the trial. [1] There was positive, direct, and substantial evidence offered by the government tending to prove a conspiracy between Marin and his codefendants to procure, sell, and transport intoxicating liquors, in violation of the provisions of the National Prohibition Act. The question of the credibility of the witnesses offered by the government to prove this fact was a question for the jury under proper instructions from the court. The motion to direct a verdict was properly overruled. [2] It is further claimed that the court erred in cross-examining, and in permitting the defendant to be cross-examined, in reference to a former indictment against him for a like offense. The defendant having testified upon direct examination that he had formerly been indicted for a like offense and that the indictment was dismissed, it was entirely proper to permit him to be cross-examined upon the same subject-matter, if for no other reason than to determine whether he had disclosed upon direct examination all the facts and circumstances in reference to the former indictment, and whether that indict follows that, the jury having been advised by ment had in fact been dismissed. It also the testimony of the defendant upon direct examination that he had been formerly indicted, his cross-examination in reference thereto could not be prejudicial. [3] It is also claimed that error intervened to the prejudice of the plaintiff in error in not requiring the government to produce the and affidavit and search warrant issued by a justice of Flint, Mich. This request came dur Delos G. Smith, U. S. Atty., and James J. Spillane, Asst. U. S. Atty., both of Detroit, Mich. Before DONAHUE, MACK, MOORMAN, Circuit Judges. ing the examination of Federal Prohibition Agent McNeeley. The affidavit and search warrant were not in the possession of the government's attorney, but were on file in the office of the justice who issued the warrant. Under these circumstances, it was not the duty of the government's attorney to produce these papers. If the defendant desired their production, he had equal rights with the government's attorney to cause a subpœna duces tecum to issue for the justice who had them in his possession. [4] It is also claimed that the court erred in cross-examining the defendant. The court did ask the defendant a number of questions, but it does not appear that defendant interposed any objections or took any exceptions to the questions propounded by the court, which it is now claimed constituted prejudicial error. Nor does it appear that any of these questions were improper. [5] It is also claimed that the court erred in its charge to the jury. It is sufficient to say in reference to this contention that there was no error in the charge, in so far as exceptions were taken thereto. This court will not consider alleged errors to which no exceptions were taken, except and unless it appears that by reason of these errors there has been a miscarriage of justice. It does not appear to this court that there has been any miscarriage of justice in this case, but, on the contrary, that the defendant has had a fair and impartial trial, that the evidence fully sustains the verdict of the jury, and that the errors assigned are highly technical and without merit. Judgment affirmed. WALKER GRAIN CO. et al. v. SOUTHWEST- (Circuit Court of Appeals, Fifth Circuit. December 1, 1925. Rehearing Denied January 19, 1926.) No. 4619. I. Appeal and error 907 (2)-Where evidence is not included in record, findings of fact assumed correct. Where evidence is not included in record, findings of fact must be assumed correct. 2. Courts 3511⁄2-Finding of want of fraud asserted as basis of defendants' liability in a jurisdictional amount held not to necessitate dismissal. In suit against two corporations, a director of each, and the principal stockholder of both, to recover for telephone service furnished both corporations of value exceeding $3,000, held, finding, that charges of fraud and collusion asserted as basis of individual defendants' liability were not sustained, did not under Judicial Code, § 37 (Comp. St. § 1019), necessitate a dismissal on ground that, in absence of liability for both claims, a jurisdictional amount was not involved. 3. Courts 351/2-Want of support for claim asserted in good faith as grounds for court's jurisdiction does not require dismissal. Judicial Code, § 37 (Comp. St. § 1019), providing for dismissal of suit not really and substantially involving a dispute or controversy within jurisdiction of court, does not require dismissal of a suit on a claim made in good faith, although court may decide that claim is not supported by the evidence. 4. Action 70-Amendment of bill to declare on written contract held not abandonment of original suit. In suit against two corporations, a director of each, and the principal stockholder of both, to recover for telephone service furnished both corporations, wherein individual defendants introduced written contracts by which they had assumed liability for claims sued on and sought dismissal on ground that plaintiff had adequate remedy at law, plaintiff's amendment of bill so as to declare on the written, contracts was not an abandonment of original suit. 5. Account 6-Suit to recover for telephone service held within equity jurisdiction because of complicated nature of accounts. Suit against two corporations and certain individuals to recover for telephone service furnished the corporations, consisting principally of long-distance conversations over a considerable period of time, wherein defendants claimed numerous overcharges and disputed correctness of each item, held within equity jurisdiction on ground of complicated and disputed character of accounts. 6. Trial 11(3)-Suit to recover for telephone services involving accounting by individual defendant held within equity jurisdiction. In suit against two insolvent corporations, a director of each, and the principal stockholder of both, to recover for telephone services, where it was found that principal stockholder had illegally appropriated large sum from treasury of one of corporations, held, equity jurisdiction existed for purpose of compelling an accounting by him which would be retained as to other individual defendants without sending case to law side of court. 7. Equity 427 (1)—Judgment held properly entered against individual defendant under contract proved by him, though bill not amended to declare on contract. In suit against two insolvent corporations and certain individuals to recover for telephone services furnished both corporations, where individual defendants to defeat equity jurisdiction proved written contracts by which they assumed individual liability and asserted that an adequate remedy at law existed, held, court having jurisdiction on other grounds could prop |
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