States being represented by Willoughby Cole, it would then be necessary to consider The case was carried to the circuit court, and was pending there at its January term, 1891. On the 23d day of February, 1897, the judgment of the district court was affirmed. It is contended on behalf of the government that the amended and supplemental answer did not present a valid defense, and therefore that the circuit court erred in affirming the judgment of the district court. But if, independently of the particular question raised by the amended and supplemental answer, the judgment of the district court dismissing the information was right upon any ground disclosed upon the record, the judgment of the circuit court affirming the judgment of the district court should not be held to have been erroneous. It cannot be doubted that by the information and the original answer the distinct is [152]sue was presented, whether the property *in Trustees, Petitioners, v. CHARLES DILLINGHAM. (See S. C. Reporter's ed. 153-158.) When judge before whom cause is heard is A judge who appointed a receiver in a foreclo- [No. 243.] 1899. States Circuit Court of Appeals for the Fifth Circuit to review a decree of that court sustaining exceptions to the master's report, and reversing the decree of the Circuit Court of the United States for the Northern District of Texas, etc. Decree of Circuit Court of Appeals set aside and quashed, and the case remanded to that court to be heard and determined by a bench of competent judges. N WRIT OF CERTIORARI to the United question was forfeited to the United States Submitted April 17, 1899. Decided May 1, See same case, 52 U. S. App. 425, and 169 The facts are stated in the opinion. *Mr. Justice Gray delivered the opinion[153] of the court: This is a writ of certiorari heretofore granted by this court under the act of March 3, 1391, chap. 517, § 6, to review a decree made by Judge Pardee and Judge Newman in the circuit court of appeals for the fifth | tral Railway Company to this court, which The leading question presented by the writ of certiorari is whether Judge Pardee was disqualified to sit at the hearing of that appeal by the provision of § 3 of that act, "that no justice or judge before whom a cause or question may have been tried or heard in a district court or existing circuit court shall sit on the trial or hearing of such cause or question in the circuit court of appeals." 26 Stat. at L. 827. If Judge Pardee was so disqualified, the decree in which he took part, even if not absolutely void, must certainly be set aside and quashed, without regard to its merits. [154]American *Construction Co. v. Jacksonville, T. & K. W. Railway Co. 148 U. S. 372, 387 [37: 486, 492]. The material facts bearing upon the question of his disqualification, as appearing by the record now before this court, are as follows: Upon a bill in equity, filed April 2, 1885, in the aforesaid circuit court of the United States, by the Morgan's Louisiana & Texas Railroad & Steamship Company against the Texas Central Railway Company, to foreclose a mortgage of its railroad and other property, Judge Pardee, on April 4, 1885, made an order, appointing Benjamin G. Clark and Charles Dillingham joint_receivers of the property, and appointing John G. Winter special master as to all matters referred or to be referred to him in the cause. Upon a petition filed in that cause by Dillingham, representing that he had been the active receiver for seventeen months, and praying for an allowance for his services as such, Judge Pardee, on December 4, 1886, made an order "that the receivers be authorized and directed to place Charles Dillingham upon the pay roll of the receivers for the sum of one hundred and fifty dollars per month, as an allowance upon his compensation as receiver in this cause; this allowance to date from the possession of the receivers, and to continue while Mr. Dillingham gives his personal attention to the business of the company or until the further order of the court." On April 12, 1887, Judge Pardee made a final decree in the cause, for the foreclosure of the mortgage; for the sale of the mortgaged property by auction; and for the payment by the purchasers of "all the indebtedness of the receivers incurred by them in this cause, including all the expenses and costs of the receivers' administration of the property," "and also the compensation of the receivers and their solicitors;" appointing Dillingham and Winter special master commissioners to make the sale, and to execute and deliver a deed to the purchasers; and reserving the right to any party to the cause, as well as to the receivers and master commissioners, to apply to the court for orders necessary to carry that decree into execution. Appeals from that decree were taken by the [155]Morgan's *Louisiana & Texas Railroad & Steamship Company and by the Texas Cen Pursuant to that decree, on April 22, 1891, all the property mortgaged, except some not immediately connected with the railroad, was sold to Moran, Gold, and McHarg, trustees for bondholders. On their petition filed in the cause, Judge Pardee, on August 28, 1891, made a decree directing Dillingham and Clark, receivers, to execute and deliver a deed, and to deliver possession, to the purchasers, of all the property, real and perIsonal, of the Texas Central Railway Company, in the state of Texas, used for and pertaining to the operation of its railway; and providing "that nothing in this decree contarned is intended to affect, or shall be construed as affecting, the status of any pending or undetermined litigation in which said receivers appear as parties; such litigation shall continue to determination in the name of said receivers, with the right reserved to said purchasers, should they be so advised, to appear and join in any such litigation; and nothing in this decree contained is intended to affect, or shall be construed as affecting, the receivership of any of the property of the defendant railway company other than the property so transferred to said purchasers, possession of which said property other than that so transferred is retained for further administration, subject to the orders of this court;" and "that said purchasers or said receivers may apply at the foot of this decree for such other and further relief as may be just." The property was accordingly delivered to the purchasers in September, 1891. On November 6, 1891, on like petition of the purchasers, Judge Pardee made a similar decree, except in directing the deed to the purchasers to be executed and delivered by Dillingham and Winter, special master commissioners, and in other particulars not material to be mentioned. Dillingham afterwards, and until April, 1895, continued to draw and pay to himself the sum of $150 a month, and returned quarterly accounts to the master crediting himself with those sums. On August 25, 1891, he presented a petition, entitled in the cause, to the master, praying him to "make *to him such an allowance for his services as[156] receiver in the above-entitled cause, from the date of his appointment until his discharge, as to said master may seem just and proper.' About the same time, a compromise was made between him and the purchasers, pursuant to which he was paid, in addition to the allowance of $150 a month for the past, the sum of $20,000 for services as receiver; and he signed a paper, entitled in the cause, acknowledging that he had received from them the sum of $20,000 “in full of my fees and charges as receiver of the Texas Central Railway Company, as per agreement." At the hearings before the master upon Dillingham's accounts it was contested between him and the purchasers whether he was entitled to $150 monthly since the compromise. The master reported that he was; and exceptions by the purchasers to his report were referred on April 8, 1895, by order of Judge McCormick, to Abner S. Lathrop, as special master, who by his report, filed September 26, 1896, found that Dillingham was entitled to the monthly allowance of $150 until April, 1893, but was not entitled to it from April, 1893, to April, 1895. That report, on exceptions taken by the purchasers and by Dillingham, was confirmed by the decree of Judge Swayne on December 5, 1896; and from that decree Dillingham took an appeal to the circuit court of appeals.. All the proceedings above stated were filed in and entitled of the cause of Morgan's Louisiana & Texas Railroad & Steamship Company v. Texas Central Railway Company. The appeal of Dillingham was heard in the circuit court of appeals by Judge Pardee and Judge Newman, who, for reasons stated in their opinion, delivered by Judge Newman, sustained Dillingham's exceptions to the master's report, reversed the decree of Judge Swayne, and remanded the cause to the circuit court "with instructions to overrule and discharge the motions attacking the receiver's accounts." 52 U. S. App. 425, 432. Moran, Gold, and McHarg, the purchasing trustees, thereupon applied for and obtained this writ of certiorari. 169 U. S. 737. The intention of Congress, in enacting that [157]no judge before *whom "a cause or question may have been tried or heard," in a district or circuit court, "shall sit on the trial or hearing of such cause or question," in the circuit court of appeals, manifestly was to require that court to be constituted of judges uncommitted and uninfluenced by having expressed or formed an opinion in the court of the first instance. Whatever may be thought of the policy of this enactment, it is not for the judiciary to disregard or to fritter away the positive prohibition of the legislature. The enactment, alike by its language and by its purpose, is not restricted to the case of a judge's sitting on a direct appeal from his own decree upon a whole cause, or upon a single question. A judge who has sat at the hearing below of a whole cause at any stage thereof is undoubtedly disqualified to sit in the circuit court of appeals at the hearing of the whole cause at the same or at any later stage. And, as "a cause," in its usual and natural meaning, includes all questions that have arisen or may arise in it, there is strong reason for holding that a judge who has once heard the cause, either upon the law or upon the facts, in the court of first instance, is thenceforth disqualified to take part, in the circuit court of appeals, at the hearing and decision of the cause or of any question arising therein. But, however that may be, a judge who has once heard the cause upon its merits in the court of first instance is certainly disqualified from sitting in the circuit court of appeals on the hearing and decision of any question, in the same cause, which involves in any degree matter upon which he had occasion to pass in the lower court. In the present case, all the decrees and orders of Judge Pardee in the circuit court, as well as the decree of Judge Swayne from which the appeal in question was taken, were made in and entitled of the original cause of the bill in equity to foreclose the mortgage of the Texas Central Railway Company. The order appointing Dilling ham and Clark receivers upon the filing of the bill, the order allowing Dillingham for his services as receiver the sum of $150 a month from his taking possession and "while he gives his personal attention to the business of the company or until the further order of the *court," the final decree of fore-[158] closure and sale, and the decrees for delivery of possession to the purchasers, were all made by Judge Pardee; and the appeal, in the hearing and decision of which he took part, from the decree of another judge concerning the compensation of Dillingham as receiver, involved a consideration of the scope and effect of his own order allowing that receiver a certain sum monthly. The necessary conclusion is that Judge Pardee was incompetent to sit on the appeal in question, and the decree in which he participated was not made by a court constituted as required by law; and therefore this court, without considering whether that decree was or was not erroneous in other respects, orders the Decree of the Circuit Court of Appeals to be set aside and quashed, and the case remanded to that court to be there heard and determined according to law by a bench of competent judges. MAUDE E. KIMBALL, Piff. in Err., v. HARRIET A. KIMBALL, John S. James, and Harriet I. James. (See S. C. Reporter's ed. 158-163.) When writ of error to state court will be dismissed this court will not decide moot questions. 1. 2. Where one claiming to be the widow applied to be appointed administratrix of the estate of a deceased person and to revoke letters of administration issued to others, and the surrogate decided that she was not the widow of the intestate, and that her marriage was void by reason of the invalidity of a decree of divorce rendered in another state purporting to dissolve a former marriage, and the surrogate's decision was affirmed by the appellate courts of the state, a writ of error from this court to the state court will be dismissed, if a will of the deceased is subsequently found, which is admitted to probate, and letters testamentary issued thereon by the surrogate, and the letters of administration revoked, although such dismissal will leave plaintiff in error bound by the adjudication of the state courts that she was not the widow of the deceased. This court cannot decide moot questions: and neither laches nor consent of parties can authorize this court to exercise jurisdiction over a case in which it is powerless to grant relief. [No. 248.] 1998. KIMBALL V. KIMBALL. Argued April 19, 1899. Decided May 1, to the intestate were absolutely void at the 1899. ERROR to the Surrogate's Court of the County of Kings, State of New York, to review a decree of that court adjudging that Maude E. Kimball was not the widow of Edward C. Kimball, nor entitled as such to let ters of administration of his estate, and dismissing her petition praying that such letters of administration be issued to her, etc. There was also a motion to dismiss. Writ of error dismissed. See same case below, 18 App. Div. 320, and 155 N. Y. 62. The facts are stated in the opinion. Messrs. George Bell, Waldegrave Harlock, and Henry W. Scott for plaintiff in error. Mr. Lemuel H. Arnold for defendants in error. [159] *Mr. Justice Gray delivered the opinion of the court: [160] This action was begun December 18, 1896, by a petition of Maude E. Kimball, claiming to be the widow of Edward C. Kimball (who resided in Brooklyn, and died there, without issue, on November 9, 1896) to the surrogate's court of the county of Kings in the state of New York, praying that letters of administration granted by that court on November 10, 1896, to his mother and his brother-in-law, upon a petition representing that he died intestate and unmarried. be revoked, and that this petitioner be appointed administratrix. The administrators previously appointed, being cited to show cause why the prayer of her petition should not be granted, filed an answer, denying that she was the widow of the deceased. At the hearing in the surrogate's court, it ber 16, 1896, that court, upon his applica- The surrogate's court held that the decree time of his death, and were not rendered val- App. Div. 320. From the decree of affirm- The petitioner sued out this writ of error, The writ of error was entered in this court The motion to dismiss was opposed by the The consideration of the motion to dismiss the writ of error was postponed until the The rule which must govern the disposition of this motion has been often stated and acted on by this court. In a comparatively recent case, pending a railroad corporation in an action against it writ of error to reverse a judgment for a by a state to recover sums of money for taxes, it was shown that the defendant had made a tender of those sums to the state, only relief which could be granted upon that ceased, and the grant of new letters of ad- From the necessity of the case, this court is compelled, as all other courts are, to allow facts which affect its right and its duty to proceed in the exercise of its appellate jurisdiction, but which do not appear upon the record before it, to be proved by extrinsic evidence. Dakota County v. Glidden, 113 U. S. 222, 225, 226 [28: 981, 982]; Mills v. Green, above cited. The reasons are quite as strong, to say the least, for applying the rule to a writ of error to a state court, on which the jurisdiction of this court is limited to Federal questions only, as to a writ of error to a circuit court of the United States, on which the jurisdiction of this court extends to the whole case. The rule was applied to a writ of error to the court of errors and appeals of the state of New Jersey in Little v. Bowers, 134 U. S. 547 [33: 1016]. In the present case, the subject-matter of the petition to the surrogate's court, and the The question whether the petitioner was or was not the widow of the deceased, whatever importance it may have in the determination of other controversies in which she may be interested, is a moot question in this case in the present condition of things; for, however that question should be decided, the petitioner cannot obtain letters of administration, and the letters of administration granted to other persons have been revoked. The objection of laches is of no weight. No consent of parties can authorize this court to exercise jurisdiction over a case in which it is powerless to grant relief. Little v. Bowers, 134 U. S. 558, 559 [33: 1021]; California v. San Pablo & Tulare Railroad Co. above cited. The probate of the will was granted, and was known to both parties to this suit, ten days before the petitioner appealed from the decree of the surrogate's court. Yet neither party appears to have requested the surrogate to modify the form of his decree against the petitioner. Had the probate of the will been brought to the notice of either of the appellate courts of the state of New York. that court might probably have dismissed the case, for the reason that its decision could not be made effectual by a judgment. People [ex rel. Kingsland], v. Clark, 70 N. Y. 518, 520. The neglect of both parties to bring that fact to the notice of those courts affords no reason for this court's assuming to decide a question, the decision of which cannot affect the relief to be ultimately granted in this case. Writ of error dismissed. |
