Where it appears to this Court from affidavits and other
evidence filed by persons not parties to a suit that there is no
real dispute between the plaintiff and defendant in the suit, but,
on the contrary, that their interest is one and the same and is
adverse to the interests of the parties who filed the affidavits,
the judgment of the circuit court entered
pro forma is a
nullity and void, and no writ of error will lie upon it. It must
therefore, be dismissed.
A motion was made by Mr. Moor, upon his own account and also as
counsel for the City Bank, at Boston, to dismiss the appeal, upon
the ground that it was a fictitious case, got up between said
parties for the purpose of settling legal questions upon which he,
the said Moor and the City Bank, had a large amount of property
depending. The motion made by Mr. Moor upon his individual account
was to dismiss the appeal; that made by him as counsel for the City
Bank was in the alternative, either to dismiss the suit, or order
the same back to the circuit court for trial, and allow the said
City Bank to be heard in the trial of the same.
It appeared upon the documents and affidavits filed, that in
1842, the Bangor & Piscataquis Canal and Railroad Company, in
the State of Maine, which had been chartered by the state, executed
a deed to the City Bank, at Boston, by virtue of which that bank
claimed to hold the entire property of the company.
In 1846, the Legislature of Maine granted to William Moor and
Daniel Moor, Jun., their associates and assigns, the sole right of
navigating the Penobscot River.
In July, 1847, an act was passed additional to the charter of
the first-named company, by virtue of which a reorganization took
place. The City Bank claimed to be the sole proprietors
Page 49 U. S. 252
or beneficiaries under this new charter, and John W. Veazie, who
held a large number of shares in the original company, claimed that
the management and control were granted to the stockholders.
In August, 1848, John W. Veazie and Nathaniel Lord executed a
written instrument, which purported to be a conveyance by Veazie to
Lord of 250 shares of the stock of the railroad company, for the
consideration of $6,000. This deed contained the following
covenant:
"And I do hereby covenant and agree to and with the said Lord,
that I will warrant and defend the said shares, and all property
and privileges of said corporation incident thereto, to the said
Lord, his executors, administrators, and assigns, and that the said
shares, property, and privileges are free and clear of all
encumbrances; and I further covenant with said Lord that the
stockholders of said company have the right to use the waters of
the Penobscot River within the limits mentioned in their charter
for the purposes of navigation and transportation by steam or
otherwise."
In September, 1848, this action on the above covenant was
docketed by consent, and a statement of facts agreed upon by the
respective counsel, under which the opinion of the court was to be
taken,
viz., that if the claim of the City Bank was valid,
then the plaintiff was entitled to recover; or if the canal and
railroad company, or the stockholders thereof, had not a right to
navigate the river, then the plaintiff was also entitled to
recover. This last prayer involved Moor's right.
In October, 1848, the court, held by Mr. Justice Ware gave
judgment for the defendant
pro forma, at the request of
the parties, in order that the judgment and question might be
brought before this Court, and the case was brought up by writ of
error, as before mentioned.
On 31 January, 1849, the record was filed in this Court, and on
2 February, printed arguments of counsel were filed, and the case
submitted to the court on the 5th. It was not taken up by the
court, but continued to the next term.
On 28 December, 1849, Mr. Wyman B. S. Moor filed, with the
motion to dismiss, as above mentioned, an affidavit, stating the
pendency of a suit by him against Veazie in the courts of Maine,
which involved the same right of navigating the river which was one
of the points of the present case. He further stated his belief,
that this case was a feigned issue, got up collusively between the
said Lord and Veazie, for the purpose of prejudicing his (Moor's)
rights, and
Page 49 U. S. 253
obtaining the judgment of this Court upon principles of law
affecting a large amount of property, in which he and others were
interested.
When the motion came on for argument, a number of affidavits
were filed in support of and against the motion. It is unnecessary
to state their contents, as they were not particularly commented on
by the court. They proved that none of the persons whose interest
was adverse to that of the plaintiff and defendant had any
knowledge of these proceedings, until after the case was removed to
this Court, and submitted for decision on printed arguments,
although one or more of those most deeply interested resided in the
town in which Lord, one of the parties, lived.
Page 49 U. S. 254
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The court is satisfied, upon examining the record in this case,
and the affidavits filed in the motion to dismiss, that the
contract set out in the pleadings was made for the purpose of
instituting this suit, and that there is no real dispute between
the plaintiff and defendant. On the contrary, it is evident that
their interest in the question brought here for decision is one and
the same, and not adverse, and that in these proceedings the
plaintiff and defendant are attempting to procure the opinion of
this Court upon a question of law, in the decision of which they
have a common interest opposed to that of other persons, who are
not parties to this suit, who had no knowledge of it while it was
pending in the circuit court, and no opportunity of being heard
there in defense of their rights. And their conduct is the more
objectionable, because they have brought up the question upon a
statement of facts agreed on between themselves, without the
knowledge of the parties with whom they were in truth in dispute,
and upon a judgment
pro forma entered by their mutual
consent, without any actual judicial decision by the court. It is a
question, too, in which is appears that property to a very large
amount is involved, the right to which depends on its decision.
It is proper to say that the counsel who argued here the motion
to dismiss, in behalf of the parties to the suit, stand entirely
acquitted of any participation in the purposes for which these
proceedings were instituted, and indeed could have had none, as
they were not counsel in the circuit court, and had no concern with
the case until after it came before this Court. And
Page 49 U. S. 255
we are bound to presume that the counsel who conducted the case
in the court below were equally uninformed of the design and object
of these parties, and that they would not knowingly have
represented to the court that a feigned controversy was a real
one.
It is the office of courts of justice to decide the rights of
persons and of property, when the persons interested cannot adjust
them by agreement between themselves -- and to do this upon the
full hearing of both parties. And any attempt, by a mere colorable
dispute, to obtain the opinion of the court upon a question of law
which a party desires to know for his own interest or his own
purposes, when there is no real and substantial controversy between
those who appear as adverse parties to the suit, is an abuse which
courts of justice have always reprehended, and treated as a
punishable contempt of court.
The suit is spoken of, in the affidavits filed in support of it,
as an amicable action, and the proceeding defended on that ground.
But an amicable action, in the sense in which these words are used
in courts of justice, presupposes that there is a real dispute
between the parties concerning some matter of right. And in a case
of that kind it sometimes happens, that, for the purpose of
obtaining a decision of the controversy, without incurring needless
expense and trouble, they agree to conduct the suit in an amicable
manner, that is to say, that they will not embarrass each other
with unnecessary forms or technicalities, and will mutually admit
facts which they know to be true, and without requiring proof, and
will bring the point in dispute before the court for decision,
without subjecting each other to unnecessary expense or delay. But
there must be an actual controversy, and adverse interests. The
amity consists in the manner in which it is brought to issue before
the court. And such amicable actions, so far from being objects of
censure, are always approved and encouraged, because they
facilitate greatly the administration of justice between the
parties. The objection in the case before us is, not that the
proceedings were amicable, but that there is no real conflict of
interest between them; that the plaintiff and defendant have the
same interest, and that interest adverse and in conflict with the
interest of third persons, whose rights would be seriously affected
if the question of law was decided in the manner that both of the
parties to this suit desire it to be.
A judgment entered under such circumstances, and for such
purposes, is a mere form. The whole proceeding was in contempt of
the court, and highly reprehensible, and the learned district
judge, who was then holding the circuit court, undoubtedly
Page 49 U. S. 256
suffered the judgment
pro forma to be entered under the
impression that there was in fact a controversy between the
plaintiff and defendant, and that they were proceeding to obtain a
decision upon a disputed question of law, in which they had adverse
interests. A judgment in form, thus procured, in the eye of the law
is no judgment of the court. It is a nullity, and no writ of error
will lie upon it. This writ is therefore
Dismissed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Maine, and was argued by counsel, and it appearing to the Court
here, from the affidavit and other evidence filed in the case by
Mr. Moor, in behalf of third persons not parties to this suit, that
there is no real dispute between the plaintiff and defendant in
this suit, but, on the contrary, that their interest is one and the
same, and is adverse to the interests of the persons aforesaid, it
is the opinion of this Court, that the judgment of the circuit
court entered
pro forma in this case is a nullity and
void, and that no writ of error will lie upon it. On consideration
whereof, it is now here ordered and adjudged by this Court, that
the writ of error be, and the same is hereby, dismissed, each party
paying his own costs, and that this cause be, and the same is
hereby, remanded to the said court, to be dealt with as law and
justice may require.
