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States being represented by Willoughby Cole, it would then be necessary to consider
Esq., United States attorney, and the claim whether the conviction of Young precluded
ants by Messrs. Brousseau and Hatch, and the United States from proceeding by infor-
Henry C. McPikc, Esq. Whereupon the mation against the property. But the clain.
United States attorney announced to the ants did not take that course. They were
court that the facts set forth in the amended careful in the amended and supplemental
and supplemental answer heretofore filed by answer to say, not only that the facts there
the claimants in this action, and to which à in alleged were in addition to those set forth
demurrer had been interposed by the United in their original answer, but that they relied
States and overruled by the court, might be upon the denials contained in the original
considered by the court and taken as true answer.
for the purposes of this trial, as if the said Without considering the merits of the
facts had been proved by competent witness- question raised by the amendment of the an-
es, but that they were insufficient in law to swer, we affirm the judgment of the circuit
oonstitute a defense to this action. There court upon the ground that there was no
upon the United States, by their said attor-proof in the case to overcome the denials in
ney, and the claimants by their attorneys the original answer or the averments of the
aforesaid, submitted the cause to the court information, and to show, as against the
for its decision upon the pleadings in said claimants, that the property had been for
cause and the said amended and supplemen- feited. Affirmed.
tal answer, the facts as to the matter, as al.
ready stated, being taken as true, the court,
after considering the same, orders and de-
crees that the libel herein be, and the same is AMEDEE D. MORAN et al., Purchasing 150
hereby, dismissed.”

Trustees, Petitioners,
The case was carried to the circuit court,
and was pending there at its January term,

CHARLES DILLINGHAM.
1891. On the 23d day of February, 1897,
the judgment of the district court was af. (See 8. C. Reporter's ed. 153–158.)
firmed.

It is contended on behalf of the govern. When judge before whom cause is heard in ment that the amended and supplemental an

disqualified to sit on appeal. swer did not present a valid defense, and therefore that the circuit court erred in af A Judge who appointed a recelver in a foreclo firming the judgment of the district court. sure suit, and made an order allowing him a But if, independently of the particular montbly sum for services, and also rendered question raised by the amended and supple

the final decree of foreclosure and decrees for

delivery of possession, is disqualified, by the mental answer, the judgment of the district court dismissing the information was right

act of Congress of March 3, 1891, chap. 317,

$ 3, to sit in the circult court of appeals, on upon any ground disclosed upon the record,

an appeal from the decree of another Judge the judgment of the circuit court affirming

concerning the monthly compensation of the the judgment of the district court should receiver after a certain compromise between not be held to have been erroneous.

him and the purchasers on the foreclosure It cannot be doubted that by the information and the original answer the distinct is.

[No. 243.) f162]sue was presented, whether the property *in

question was forfeited to the United States Submitted April 17, 1899. Decided Vay 1, by reason of the wrongful and fraudulent

1899. acts specified in the information. The answer put the government upon proof of those | NWRIT OF CERTIORARI to the United acts. "No proof was however made by the U States Circuit Court of Appeals for the government to establish the alleged grounds Fifth Circuit to review a decree of that of forfeiture. Nevertheless, the cause was court sustaining exceptions to the master's submitted for decision, not only upon the report, and reversing the decree of the Cirfacts set forth in the amended and supple. I cuit Court of the United States for the mental answer, taking them to be true, but Northern District of Texas, etc. Decree of upon the pleadings. So that even if the dis- Circuit Court of Appeals set aside and trict court had been of opinion that the quashed, and the case remanded to that court amended and supplemental answers were in- to be heard and determined by a bench of sufficient in law, it still remained for it to competent judges. determine the rights of the parties upon the See same case, 52 U. S. App. 425, and 169 information and the original answer. As U. S. 737. the original answer controverted the mater- ! The facts are stated in the opinion. iai allegations of the information, and as Mr. L. W. Campbell for petitioners. the cause was submitted for decision upon Messrs. George Clark and D. O. Bolinger the pleadings, without any proof to sustain for respondent. the allegations of fraudulent acts forfeiting the property, the final order dismissing the *Mr. Justice Gray delivered the opinion 158, information was proper. If the claimants of the court: had withdrawn their denials of such allega- This is a writ of certiorari heretofore tions of the information as set forth the granted by this court under the act of March grounds upon which the government asserted 3, 1391, chap. 517, § 6, to review a deeree the forfeiture of the property in question,' made by Judge Pardee and Judge Newman 930

174 U.S.

in the circuit court of appeals for the fifth | tral Railway Company to this court, which circuit upon an appeal to that court from on November 24, 1890, affirmed that decree, the circuit court of the United States for the 137 U. S. 171 [34: 625]. northern district of Texas.

Pursuant to that decree, on April 22, 1891, The leading question presented by the writ all the property mortgaged, except some not of certiorari is whether Judge Pardee was immediately connected with the railroad, disqualified to sit at the hearing of that ap- was sold to Moran, Gold, and McHarg, truspeal by the provision of § 3 of that act, tees for bondholders. On their petition filed athat no justice or judge before whom a in the cause, Judge Pardee, on August 28, cause or question may have been tried or 1891, made a decree directing Dillingham heard in a district court or existing circuit and Clark, receivers, to execute and deliver court shall sit on the trial or hearing of a deed, and to deliver possession, to the pur. such cause or question in the circuit court chasers, of all the property, real and perof appeals." 26 Stat. at L. 827.

sonal, of the Texas Central Railway ComIf Judge Pardee was so disqualified, the pany, in the state of Texas, used for and perdecree in which he took part, even if not ab- taining to the operation of its railway; and solutely void, must certainly be set aside providing "that nothing in this decree con.

and quashed, without regard to its merits. tained is intended to affect, or shall be con4 JAmerican Construction Co. V. Jacksonville, strued as affecting, the status of any pending

T. & K. W. Railway Co. 148 U. S. 372, 387 or undetermined litigation in which said re (37: 486, 492].

ceivers appear as parties; such litigation The material facts bearing upon the ques. shall continue to determination in the name tion of his disqualification, as appearing by of said receivers, with the right reserved to the record now before this court, are as fol. said purchasers, should they be so advised, lows:

to appear and join in any such litigation; Upon a bill in equity, filed April 2, 1885, and nothing in this decree contained is inin the aforesaid circuit court of the United tended to affect, or shall be construed as States, by the Morgan's Louisiana & Texas affecting, the receivership of any of the Railroad & Steamship Company against property of the defendant railway company the Texas Central Railway Company, to fore other than the property so transferred to close a mortgage of its railroad and other said purchasers, possession of which said property, Judge Pardee, on April 4, 1885, property other than that so transferred is made an order, appointing Benjamin G. | retained for further administration, subject Clark and Charles Dillingham joint receiv. to the orders of this court;" and "that said ers of the property, and appointing John G. purchasers or said receivers may apply at Winter special master as to all matters re- the foot of this decree for such other and ferred or to be referred to him in the cause. further relief as may be just." The proper

Upon a petition filed in that cause by Dilety was accordingly delivered to the purlingħam, representing that he had been the chasers in September, 1891. On November active receiver for seventeen months, and 6, 1891, on like petition of the purchasers, praying for an allowance for his services as Judge Pardee made a similar decree, except such, Judge Pardee, on December 4, 1886, in directing the deed to the purchasers to made an order "that the receivers be author be executed and delivered by Dillingham and ized and directed to place Charles Dilling. Winter, special master commissioners, and ham upon the pay roll of the receivers for in other particulars not material to be menthe sum of one hundred and fifty dollars per tioned. month, as an allowance upon his compensa-| Dillingham afterwards, and until April, tion as receiver in this cause; this allowance 1895, continued to draw and pay to himself to date from the possession of the receivers, the sum of $150 a month, and returned and to continue while Mr. Dillingham gives quarterly accounts to the master crediting his personal attention to the business of the himself with those sums. On August 25, company or until the further order of the 1891, he presented a petition, entitled in the court."

cause, to the master, praying him to “make On April 12, 1887, Judge Pardee made a *to him such an allowance for his services as[156) final decree in the cause, for the foreclosure receiver in the above-entitled cause, from the of the mortgage; for the sale of the mort- date of his appointment until his discharge, gaged property by auction; and for the pay- as to said master may seem just and proper." ment by the purchasers of "all the indebt. About the same time, a compromise was edness of the receivers incurred by them in made between him and the purchasers, pur. this cause, including all the expenses and suant to which he was paid, in addition to costs of the receivers' administration of the the allowance of $150 a month for the past, property," "and also the compensation of the the sum of $20,000 for services as receiver; receivers and their solicitors;" appointing and he signed a paper, entitled in the cause, Dillingham and Winter special master com acknowledging that he had received from missioners to make the sale, and to execute them the sum of $20,000 "in full of my fees and deliver a deed to the purchasers; and and charges as receiver of the Texas Central reserving the right to any party to the cause, Railway Company, as per agreement.” At as well as to the receivers and master com the hearings before the master upon Dilling. missioners, to apply to the court for orders ham's accounts it was contested between him necessary to carry that decree into execution. and the purchasers whether he was entitled Appeals from that decree were taken by the to $150 monthly since the compromise. The ]Morgan's "Louisiana & Texas Railroad & master reported that he was; and exceptions Steamship Company and by the Texas Cen-'by the purchasers to his report were referred

on April 8, 1895, by order of Judge McCor, as well as the decree of Judge Swayne from mick, to Abner S. Lathrop, as special master, which the appeal in question was taken, who by his report, filed September 26, 1896, were made in and entitled of the original found that Dillingham was entitled to the cause of the bill in equity to foreclose the monthly allowance of $150 until April, 1893, mortgage of the Texas Central Railway but was not entitled to it from April, 1893, Company. The order appointing Dillingto April, 1895. That report, on exceptions | ham and Clark receivers upon the filing of taken by the purchasers and by Dillingham, the bill, the order allowing Dillingham for was confirmed by the decree of Judge Swayne his services as receiver the sum of $150 a on December 5, 1896; and from that decree month from his taking possession and “while Dillingham took an appeal to the circuit | he gives his personal attention to the busicourt of appeals..

ness of the company or until the further or. All the proceedings above stated were filed der of the *court," the final decree of fore-[158) in and entitled of the cause of Morgan's closure and sale, and the decrees for delivery Louisiana de Texas Railroad & Steamship of possession to the purchasers, were all made Company v. T'exas Central Railway Com- by Judge Pardee; and the appeal, in the pany.

| hearing and decision of which he took part, The appeal of Dillingham was heard in from the decree of another judge concerning the circuit court of appeals by Judge Pardee the compensation of Dillingham as receiver, and Judge Newman, who, for reasons stated involved a consideration of the scope and efin their opinion, delivered by Judge Newman,fect of his own order allowing that receiver sustained Dillingham's 'exceptions to the a certain sum monthly. master's report, reversed the decree of Judge The necessary conclusion is that Judge Swayne, and remanded the cause to the cir: Pardee was incompetent to sit on the appeal cuit court "with instructions to overrule and in question, and the decree in which he pardischarge the motions attacking the receiv- ticipated was not made by a court constier's accounts.” 52 U. S. App. 425, 432. tuted as required by law; and therefore this Moran, Gold, and McHarg, the purchasing court, without considering whether that detrustees, thereupon applied for and obtained cree was or was not erroneous in other rethis writ of certiorari. 169 U. S. 737. spects, orders the

The intention of Congress, in enacting that Decree of the Circuit Court of Appeals to (157]no judge before *whom “a cause or question be set aside and quashed, and the case re

may have been tried or heard,” in a district manded to that court to be there heard and or circuit court, “shall sit on the trial or determined according to law by a bench of hearing of such cause or question,” in the competent judges. 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

MAUDE E. KIMBALL, Piff. in Err., the court of the first instance. Whatever may be thought of the policy of this enact

HARRIET A. KIMBALL, John S. James, ment, it is not for the judiciary to disregard

and Harriet I. James. or to fritter away the positive prohibition of the legislature.

(See S. C. Reporter's ed. 158_163.) The enactment, alike by its language and by its purpose, is not restricted to the case When writ of error to stale court will be disof a judge's sitting on a direct appeal from missed this court will not decide moot his own decree upon a whole cause, or upon questions. a single question. A judge who has sat at the hearing below of a whole cause at any 1. Where one claiming to be the widow ap stage thereof is undoubtedly disqualified to

plied to be appointed administratris of the sit in the circuit court of appeals at the estate of a deceased person and to revoke hearing of the whole cause at the same or letters of administration issued to others, at any later stage. And, as "a cause,” in its and the surrogate decided that she was not usual and natural meaning, includes all

the widow of the intestate, and that her questions that have arisen or may arise in

marriage was void by reason of the invalidit, there is strong reason for holding that a

ity of a decree of divorce rendered in anotber

state purporting to dissolve a former mar judge who has once heard the cause, either

riage, and the surrogate's decision was afirmed upon the law or upon the facts, in the court

by the appellate courts of the state, a writ of first instance, is thenceforth disqualified of error from this court to the state court to take part, in the circuit court of appeals, will be dismissed, If u will of the deceased at the hearing and decision of the cause or is subsequently found, which le admitted to of any question arising therein. But, how probate, and letters testamentary issued

thereon by the surrogate, and the letters of ever that may be, a judge who has once heard

administration revoked, although such disthe cause upon its merits in the court of first

missal will leave plaintif in error bound by instance is certainly disqualified from sitting

the adjudication of the state courts that she in the circuit court of appeals on the hearing

was not the widow of the deceased. and decision of any question, in the same

2. This court cannot decide moot questions : cause, which involves in any degree matter

and neither laches nor consent of parties can upon which he had occasion to pass in the authorize this court to exercise jurisdiction lower court.

over a case in which it is powerless to grant In the present case, all the decrees and or. relief. ders of Judge Pardee in the circuit court,

(No. 248.]

Argued April 19, 1899. Decided May 1, to the intestate were absolutely roid at the 1899.

time of his death, and were not rendered val

id by the subsequent amendment of the deIN ERROR to the Surrogate's Court of the cree of divorce; and by a decree dated March I County of Kings, State of New York, to 8, 1897, adjudged that the petitioner was not 'eview a decree of that court adjudging that the widow of Edward C. Kimball, nor enti. Maude E. Kimball was not the widow of Edtled as such to letters of administration of ward C. Kimball, nor entitled as such to let his estate; and further adjudged that her ers of administration of his estate, and dis-petition be dismissed. On April 5, 1897, the nissing her petition praying that such let petitioner appealed from that decree to the ers of administration be issued to her, etc. appellate division of the supreme court of Chere was also a motion to dismiss. Writ the state of New York, which on June 22, of error dismissed.

1897, affirmed the decree. Re Kimball, 18 See same case below, 18 App. Div. 320, App. Div. 320. From the decree of affirmind 155 N. Y. 62.

ance, the petitioner on August 19, 1897, apThe facts are stated in the opinion.

pealed to the court of appeals of the stato Messrs. George Bell, Waldegrave Har- of New York; and that court, on February Sock, and Henry W. Scott for plaintiff in 4, 1898, affirmed the decree, and ordered the prror.

case to be remitted to the surrogate's court. Mr. Lemuel H. Arnold for defendants in 155 N. Y. 62. error.

The petitioner sued out this writ of error,

and assigned for error that the courts of New *Mr. Justice Gray delivered the opinion York had not given due faith and credit to of the court:

the decree of the court of North Dakota. This action was begun December 18, 1896, The writ of error was entered in this court by a petition of Maude E. Kimball, claiming on February 21, 1898. On March 22, 1898, to be the widow of Edward C. Kimball (who the defendants in error moved to dismiss the resided in Brooklyn, and died there, without writ of error, because of the following facts, issue, on November 9, 1896) to the surro- proved by them, and admitted by the plaingate's court of the county of Kings in the tiff in error, namely: On March 25, 1897, state of New York, praying that letters of on a petition of the mother and sister of Ed. administration granted by that court on No-ward . Kimball, representing that his last vember 10, 1896, to his mother and his broth- will and testament, dated July 7, 1890, deer-in-law, upon a petition representing that vising and bequeathing to them all his prophe died intestate and unmarried, be revoked, erty, real and personal, and appointing them and that this petitioner be appointed admin- executrices thereof, had just been found, the istratrix.

surrogate's court, upon due proof of its exThe administrators previously appointed, ecution and attestation, entered a decree adbeing cited to show cause why the prayer of mitting the will to probate, ordering letters her petition should not be granted, filed an testamentary to be issued to the executrices, answer, denying that she was the widow of and revoking the letters of administration the deceased.

which had been granted to the mother and At the hearing in the surrogate's court, it the brother-in-law on November 10, 1896. was proved and admitted that Edward C. The entry of the decree of March 25, 1897, Kimball and the petitioner went through the was notified by the counsel of the present deCeremony of marriage at Brooklyn on June fendants in error to the counsel of the plain29, 1895; that she had been married on May I tiff in error on the day on which it took 12, 1885, to James L. Semon in the city of place New York; that on September 25, 1890, she

The motion to dismiss was opposed by the Pommenced a suit against Semon in a court

plaintiff in error, upon the grounds that the of the state of North Dakota for a divorce

| judgment below involved a Federal *question[161] on the ground of his desertion; that the sum

within the jurisdiction of this court; that a mons in that suit was not served upon him

dismissal of the writ of error would leave the in North Dakota, but was served upon him in the state of New York on October 15, 1890;

plaintiff in error bound by the adjudication

below that she was not the widow of the de that on January 26, 1891, that court ren

ceased; that the admission of the will to lered a decree of divorce against him as upon his default; that she was living in North

probate had no bearing on the question beDakota from June 5, 1890, to February 5,

| fore this court; and that the defendants in 1891; that when she brought her suit for di

C error had been guilty of laches in not sooner vorce, and ever since, Semon was a resident

| making a motion to dismiss.

The consideration of the motion to dismiss of the state of New York; and that on December 16, 1896, that court, upon his applica- |

the writ of error was postponed until the tion and after notice to her, amended the de-hearing upon the merits, and now presents 'ree of divorce by striking out the statement | itself at the threshold. of his default, and by stating, in lieu there The rule which must govern the disposi»f. that he had appeared and answered in the tion of this motion has been often stated and suit. Copies of the record of the proceed acted on by this court. ngs for divorce were produced; and the prin In a comparatively recent case, pending a

ipal matter contested in the surrogate's writ of error to reverse a judgment for a court was the validity of the divorce. railroad corporation in an action against it

*The surrogate's court held that the decree by a state to recover sums of money for of divorce and the marriage of the petitioner 'taxes, it was shown that the defendant had

ante

made a tender of those sums to the state, I only relief which could be granted upon that and a deposit of them in a bank to its credit, petition, were the revocation of the letters of which by statute had the same effect as act administration previously issued to the ual payment and receipt of the money. Stip- mother and the brother-in-law of the de ulations had been made in other similar cases ceased, and the grant of new letters of adthat they should abide the judgment of this ministration to the petitioner. The deeree ad court in this case; and the Attorney General mitting the will to probate, in terms, reof the state contended that a determination voked the former letters of administration, of the question whether the tax was valid and, by its legal effect, superseded the ne was of the utmost importance to the people cessity and the possibility of granting any of the state. But this court dismissed the letters of administration as of an intestate es writ of error, saying: “The duty of this tate to the petitioner or to anyone else. New 163 court, as of every judicial tribunal, is lim. York Code of Civil Procedure, $8 2476, 2626, ited to determining rights of persons or of 2684. The whole subject-matter of the writ property, which are actually controverted in of error is thus withdrawn, and the writ of the particular case before it. When, in de error must be dismissed for want of any. termining such rights, it becoines necessary thing upon which it can operate. Chicago to give an opinion upon a question of law, D. & Vincennes Railroad Co. v. Fosdick, 106 that opinion may have weight as a precedent U. S. 47, 84 [27: 47, 65); San Mateo County for future decisions. But the court is not v. Southern Pacific Railroad Co. 116 C. S. 138 empowered to decide moot questions or ab- [29: 589); Washington Market Co. v. Dis. stract propositions, or to declare, for the trict of Columbia, 137 U. S. 62 (34: 572). government of future cases, principles or The question whether the petitioner vas rules of law which cannot affect the result as or was not the widow of the deceased, whatto the thing in issue in the case before it. No ever importance it may have in the determistipulation of parties or counsel, whether in nation of other controversies in which she the case before the court or in any other case, may be interested, is a moot question in this can enlarge the power or affect the duty of case in the present condition of things; for, the court in this regard.California v. San | however that question should be decided, the Pablo & Tulare Railroad Co. 149 U. S. 308, petitioner cannot obtain letters of adminis 314 (37: 747, 749).

tration, and the letters of administration (162) *Again, in a still more recent case, this granted to other persons have been revoked

court, upon a review of the previous deci- The objection of laches is of no weight lo sions, said: “The duty of this court, as of consent of parties can authorize this court every other judicial tribunal, is to decide to exercise jurisdiction over a case in which actual controversies by a judgment which it is powerless to grant relief. Little F. can be carried into effect, and not to give Bowers, 134 U. S. 558, 559 (33: 1021): Cal. opinions upon moot questions or abstract ifornia v. San Pablo & Tulare Railroad Ce propositions, or to declare principles or rules above cited. The probate of the will vis of law which cannot affect the matter in is granted, and was known to both parties to sue in the case before it. It necessarily fol. this suit, ten days before the petitioner ap lows that when, pending an appeal from the pealed from the decree of the surrogate's judgment of a lower court, and without any court. Yet neither party appears to have fault of the defendant, an event occurs which requested the surrogate to modify the form renders it impossible for this court, if it of his decree against the petitioner. Had should decide the case in favor of the plain the probate of the will been brought to the tiff, to grant him any effectual relief what-notice of either of the appellate courts of ever, the court will not proceed to a formal the state of New York. that court might judgment, but will dismiss the appeal.” | probably have dismissed the case, for the res Mills v. Green, 159 U. S. 651, 653 [40: 293, son that its decision could not be made ef294).

fectual by a judgment. People (px rel. RingsFrom the necessity of the case, this court land), v. ciark, 70 N. Y. 518, 520. Tbe is compelled, as all other courts are, to allow neglect of both parties to bring that fact to facts which affect its right and its duty to the notice of those courts affords no reason proceed in the exercise of its appellate juris for this court's assuming to decide a ques diction, but which do not appear upon the tion, the decision of which cannot affect the record before it, to be proved by extrinsic relief to be ultimately granted in this ease evidence. Dakota County v. Giidden, 113 Writ of error dismissed. 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

SAMUEL NELSON, Piff in Err., [164

0.
to a state court, on which the jurisdiction of
this court is limited to Federal questions

DENNIS MOLONEY.
only, as to a writ of error to a circuit court
of the United States, on which the jurisdic-

(See 8. C. Reporter's ed 164–168.)
tion of this court extends to the whole case. Error in remanding case to state court.
The rule was applied to a writ of error to
the court of errors and appeals of the state

Error of a circult court in remanding a case to of New Jersey in Little v. Bowers, 134 U. S.

a state court is not a ground for a writ of 647 [33: 1016].

error to review the subsequent decision of the

case by the state court.
In the present case, the subject-matter of
the petition to the surrogate's court, and the

[No. 767.)

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