Cases in which the jurisdiction of the district or circuit
courts of the United States is in issue can only be brought
directly to this Court after final judgment on the whole case.
When a libel and cross-libel are filed in admiralty, they should
be heard together, and if the cross-libel is dismissed for want of
jurisdiction before the whole case is heard and determined, this
Court cannot take jurisdiction of the order of dismissal under
section five of the Judiciary Act of March 3, 1891.
The case is stated by the district court, in substance, as
follows: on November 3, 1899, a libel was filed on behalf of the
United States in the District Court of the United States for the
District of New Jersey against the schooner
William H.
Davenport, her tackle, apparel, and furniture, and against all
persons intervening therein, in case of collision, civil and
maritime, seeking to recover the sum of $5,000 damages alleged to
have been sustained by the lighthouse tender
Azalea in
a
Page 186 U. S. 136
collision with that schooner on October 2, 1899, off Cornfield
Point lightship in Long Island sound. It was averred in the libel
that the collision was in no way caused by the fault or negligence
of those on board the lighthouse tender
Azalea, but that
it was solely due to the carelessness and negligence of those in
charge of the schooner
William H. Davenport in certain
particulars stated. The libel concluded with the formal prayer that
process might issue in due form of law against the schooner, her
tackle, apparel, and furniture; that all persons interested might
be cited to appear and answer, and that the schooner might be
condemned and sold to pay libellant's claim with interest and
costs, "and that the court will otherwise right and justice
administer in the premises." Process in due form was issued against
the schooner, and on November 8, 1899, the marshal filed his return
certifying that, on November 4, he had made due attachment of the
schooner, and that the vessel was then in his custody. November 22,
1899, F. S. Bowker, managing owner, filed a claim to the schooner
on behalf of her owners, a stipulation for costs and a stipulation
for value, and thereupon the schooner was released from custody and
restored to the possession of her owners. The claimant, Bowker,
filed his answer to the libel December 11, 1899, denying that the
collision was caused or contributed to by those in charge of the
schooner, alleging that the collision and the damage resulting
therefrom were caused wholly by the fault of the steamer
Azalea and of those in charge of her in certain
particulars stated, and concluding with the prayer that the libel
be dismissed with costs. December 29, 1899, Bowker, for and on
behalf of himself and his co-owners, filed a cross-libel against
the United States seeking to recover the sum of $6,000 damages
alleged to have been sustained by the schooner and by her cargo in
said collision. It was alleged in the cross-libel that the
collision was wholly due to the negligence and fault of the steamer
Azalea and of those in charge of her, the particulars
being set forth, and the prayer of the cross-libel asked
"that a citation, according to the course and practice of this
honorable court in causes of admiralty and maritime jurisdiction,
may issue to the said respondents above named, citing and
admonishing them to
Page 186 U. S. 137
appear and answer all and singular the matters aforesaid, and
that this honorable court shall pronounce for the damages, with
interest and costs, and will grant a stay of all further
proceedings in the action of the said respondent brought by it in
this honorable court against the schooner
William H.
Davenport by the filing of a libel against said schooner, on
November 3, 1899, until security be given by said respondent,
pursuant to the admiralty rules of the Supreme Court of the United
States and the practice of this honorable court, to respond for the
damages claimed in this cross-libel, and that this honorable court
will give to the cross-libellants such other and further relief as
in law and justice he may be entitled to receive, this said action
being a counterclaim arising from the same cause of action for
which the original libel was filed against the said
William H.
Davenport."
Citation was issued and served on the United States attorney for
the district, who was the proctor of record for the libellant in
the original suit. The United States attorney filed a notice of
motion to quash the citation, February 14, 1900, and a motion to
that effect was argued by counsel. December 17, 1900, the district
court filed its written decision, holding that the cross-libel
could not be maintained because the court had no jurisdiction to
entertain the cause or to enter a decree as prayed for against the
United States, whereupon and on that day the court entered a decree
that the citation be quashed and that the cross-libel be dismissed
with costs. 105 F. 398. The cross-libellant thereupon appealed to
this Court, and the appeal was allowed on the question of
jurisdiction. The district court made a statement of the facts, to
which a copy of the record was attached, and certified five
questions in respect of jurisdiction under the cross-libel to this
Court for decision.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Page 186 U. S. 138
This appeal is prosecuted under the fifth section of the
Judiciary Act of March 3, 1891, providing
"that appeals or writs of error may be taken from the district
courts or from the existing circuit courts direct to the Supreme
Court in the following cases:"
"(1) In any case in which the jurisdiction of the court is in
issue. In such cases, the question of jurisdiction alone shall be
certified to the Supreme Court from the court below for
decision."
By the sixth section, the circuit court of appeals, in cases
within its appellate jurisdiction, may certify to the Supreme Court
"any questions or propositions of law concerning which it desires
the instruction of that court for its proper decision," and our
thirty-seventh rule requires in such cases that "the certificate
shall contain a proper statement of the facts on which such
question or proposition of law arises."
The district court has observed that rule in form, but it is
under the fifth section that our jurisdiction is invoked, and, as
the record accompanies the statement, we are enabled to dispose of
the appeal.
It was settled soon after the passage of the act of 1891 that
cases in which the jurisdiction of the district or circuit courts
was in issue could be brought to this Court only after final
judgment.
McLish v. Roff, 141 U.
S. 661;
Railway Company v. Roberts,
141 U. S. 690. The
subject was carefully considered in the opinion of Mr. Justice
Lamar in the first of these cases, and the conclusion reached was
in accordance with the general rule that a case cannot be brought
to this Court in parcels.
Railway Company v. Postal Telegraph
Company, 179 U. S. 641.
The preliminary question is therefore whether the decree
dismissing this cross-libel is a final judgment within the rule
upon that subject. It was long ago held that a decree dismissing a
cross-bill in equity could not be considered, standing alone, as a
final decree in the suit, and was not the subject of an independent
appeal to this Court under the Judiciary Act of 1789, and that it
could only be reviewed on an appeal from a final decree disposing
of the whole case.
Ayres v.
Carver, 17 How. 591;
Ex Parte Railroad
Company, 95 U. S. 221.
Page 186 U. S. 139
It is argued that
Ayres v. Carver is distinguishable
from the case at bar because the twenty-second section of the
Judiciary Act of 1789, under which the appeal in that case was
taken, provided in terms for the revision of final decrees, whereas
no specific mention is made of final decrees or judgments in
section five of the Judiciary Act of 1891. But that difference was
specifically disposed of in
McLish v. Roff as not
affecting the principle that the decree must be final in order to
be appealable.
Counsel quote the language of Mr. Chief Justice Waite in
Railroad Company v. Express Company, 108 U.
S. 28, that
"a decree is final, for the purposes of an appeal to this Court
when it terminates the litigation between the parties on the merits
of the case, and leaves nothing to be done but to enforce by
execution what has been determined,"
and insist that the decree on the cross-libel has definitely
determined the right of respondent to affirmative relief. But the
litigation between the parties on the merits embraced the right of
libellant to recover because of the fault of respondent, as well as
the right or respondent to recover because of the fault of
libellant, and until the question as to which of the parties was at
fault, or whether both were, is determined, that litigation cannot
be said to have terminated. If the district court had held that it
had jurisdiction to award affirmative relief against the United
States on the cross-libel, the cause would have stood for hearing
on the whole case. Its decision that it did not have jurisdiction
simply prevented respondent from obtaining affirmative relief over,
assuming that the facts justified it. And however convenient it
might be that the question of jurisdiction of the cross-libel
should be adjudicated in advance, it is nevertheless true that,
when a decree was rendered on the original libel, the error, if
any, committed in dismissing the cross-libel could be rectified.
That this course might result in delay, and perhaps sometimes in
hardship, if it should turn out that jurisdiction could be
exercised on the cross-libel, is not a sufficient reason for
entertaining an appeal if the decree did not so dispose of the case
as to enable this Court to take jurisdiction.
Generally speaking, the same principles apply to
cross-libels
Page 186 U. S. 140
as to cross-bills, and this case affords no ground of exception
therefrom.
In admiralty, if the respondent desires to obtain entire damages
against the libellant, or damages in excess of those claimed by
libellant, a cross-libel is necessary, although matters of
recoupment or counterclaim might be asserted in the answer.
The Sapphire,
18 Wall. 51;
The Dove, 91 U. S. 381.
In
The Dove, a final decree was entered in favor of the
libellants in the original suit, and a decree rendered at the same
time dismissing the cross-libel. No appeal was taken from the
decree of dismissal, but the case was carried to the circuit court
from the district court by appeal from the decree on the libel,
which was affirmed, and the cause brought to this Court.
The principal question involved on the appeal to this Court was
whether the submission to the dismissal of the cross-libel in the
district court by the parties who had filed it prevented them from
making the same defense to the original libel that they might have
made if no cross-libel had been filed, and it was held that, while
the parties were bound by the decree of the district court
dismissing the cross-libel, the issues of law and fact involved in
the original suit were not thereby disposed of.
In the course of some general observations, Mr. Justice
Clifford, delivering the opinion, after remarking that causes of
that kind might be heard separately, said:
"Usually such suits are heard together, and are disposed of by
one decree or by separate decrees entered at the same time; but a
decision in the cross-suit adverse to the libellant, even if the
decree is entered before the original suit is heard, will not
impair the right of the respondent in the original suit to avail
himself of every legal and just defense to the charge there made
which is regularly set up in the answer, for the plain reason that
the adverse decree in the cross-suit does not dispose of the answer
in the original suit. . . . Whether the controversy pending is a
suit in equity or in admiralty, a cross-bill or libel is a bill or
libel brought by a defendant in the suit against the plaintiff in
the same suit, or against other defendants in the original suit, or
against both, touching the matters in question in the original
Page 186 U. S. 141
bill or libel. It is brought in the admiralty to obtain full and
complete relief to all parties as to the matters charged in the
original libel, and in equity the cross-bill is sometimes used to
obtain a discovery of facts. New and distinct matters, not included
in the original bill or libel, should not be embraced in the
cross-suit, as they cannot be properly examined in such a suit, for
the reason that they constitute the proper subject matter of a new
original bill or libel. Matters auxiliary to the cause of action
set forth in the original libel or bill may be included in the
cross-suit, and no others, as the cross-suit is, in general,
incidental to, and dependent upon, the original suit.
Ayres v. Carver, 17 How.
595;
Field v. Schieffelin, 7 Johns.Ch. 252;
Shields v. Barrow, 17
How. 145."
In this case, the cross-libel was, as stated therein,
"a cross-libel brought under Admiralty Rule 53 of the Supreme
Court of the United States, being a counterclaim arising out of the
same cause of action as the suit brought by the United States
against the said schooner
William H. Davenport in a cause
of collision, by a libel filed Nov. 3, 1899, in said court."
The fifth-third admiralty rule provides that the respondents in
a cross-libel shall give security to respond in damages, unless
otherwise directed, and that all proceedings on the original libel
shall be stayed until such security shall be given.
The cross-libel and the answer to the libel were consistent, the
subject matter of the libel and the cross-libel was the same, and
the latter in no proper sense introduced new and distinct matters.
The cross-libel occupied the same position as a cross-bill in
equity, and the general rule is that the original bill and the
cross-bill should be heard together and disposed of by one decree,
although where the cross-bill asks affirmative relief, and is
therefore not a pure cross-bill, the dismissal of the original bill
may not dispose of the cross-bill, which may be retained for a
complete determination of the cause.
Holgate v. Eaton,
116 U. S. 33,
illustrates this. There, the bill and cross-bill were heard
together, and it was held that the original bill must be dismissed,
but that relief might be accorded on the cross-bill. The cross-bill
was not filed merely as a means of defense, but of obtaining
affirmative relief, and the defeat of the bill sustained
Page 186 U. S. 142
the disposition of the cause on the cross-bill. Such might be
the result here if it turned out on the hearing that the
Azalea was in fault, and not the schooner, provided
jurisdiction could be maintained to award relief against the United
States. But, in any point of view, the decree on the cross-libel
did not so finally dispose of the whole case as to entitle us to
take jurisdiction under section 5 of the act of 1891.
Appeal dismissed.
MR. JUSTICE WHITE and MR. JUSTICE McKENNA dissented.
