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Statement of Facts.

tory decree herein of October 30, 1882, to have been wrong. fully appropriated by said Fourth National Bank, as follows:

Stout, Mills & Temple
Kidder, Peabody & Co....
R. Hunter, Craig & Co....
Anton Kufike.
Merchants' Bank of Canada..
The First National Bank of Chicago.....

$3,591 32
2,658 72
1,072 26

749 66
391 23
527 41

$8,990 60

And to have each his several execution therefor, with his costs."

The bill was also dismissed as to all the defendants except the bank, and as to the bank except to the extent of the de cree in favor of the several creditors as above, such dismissal being “without prejudice to any claims or rights and claims of any defendant as against each other connected with the matters set forth in the master's report."

From this decree the bank appealed, and the appellees, the several creditors in whose favor the decree was rendered, moved to dismiss, because the value of the matter in dispute between the bank and the several appellees does not exceed $5,000.

Mr. B. D. Lee for appellant. The complainant adruits an indebtedness from the company to the bank of $120,000, and the proof shows one still greater. The accounting on which the decree is based undertakes to settle this question forever, and the decree from which the appeal is taken confirms that report and settles and adjusts the rights of all the parties.

The cases cited by respondents in their brief, in support of their motion to dismiss, are not applicable to this case. In the case of Schwed v. Smith, 106 U. S. 188, complainants claimed that the whole fund arising from the sale of the attached property had been obtained, by the defendant, by fraud, and that the defendant had no legal or equitable right to hold the same as against the complainants; whereas in the case at bar, the

Opinion of the Court

bill of complaint proceeds upon the theory that the fund appropriated by appellant, was one in which all the creditors, including the appellant, had a common right, and tenders an issue wbich made it absolutely necessary that the affirmative rights of appellant, as against the milling company and the otber defendants, sbould be determined. And appellant cannot be denied its right of appeal because the court below saw fit, after the adjustment of these rights, to dismiss the suit as to all of the other defendants. The appellant's rights baving been raised by the bill, cannot be taken away from it by a dismissal as to the other defendants in a case where the decree in its entirety reaches beyond the mere adjustment of complainants' demand.

Mr. Frederick N. Judson and Mr. John H. Overall for appellees.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. He recited the facts in the foregoing language, and continued :

The motion is granted on the authority of Seaver v. Bigelows, 5 Wall. 208, and Schwed v. Smith, 106 U. S. 188. The appellees have separate and distinct decrees in their favor depending on separate and distinct claims. If none of the other creditors had intervened, and the decree had been rendered in favor of Stout, Mills & Temple alone upon their bill as filed, in which they sought to recover only their pro rata share of the assets of their debtor in the hands of the bank, it certainly could not be claimed that an appeal would lie if their recovery was for less than $5,000. The suit was instituted, not for the whole property in the hands of the bank, but only for the complainants' pro rata share. After the suit was begun the intervening creditors were allowed to come in each for his separate share of the assets. On their intervention the case stood precisely as it would if each creditor had brought a separate suit for his separate share of the fund. The decree in favor of the several creditors has precisely the same effect, for the purposes of an appeal, that it would have had; if rendered in such separate suits.

Since the bill was dismissed as to the other parts of case

Arguments for the Motions.

without prejudice to the rights of the defendants among themselves, the report of the master is binding on the parties only so far as it fixes the amounts due the several appellees. In its effect the decree binds no one except the parties to the appeal in respeut to the right of the several appellees to their recovery


DAVIES v. CORBIN & Another.

GAINES v. CORBIN & Another.



Submitted March 8, 1885.-Decided March 18, 1888.

The docketing by the defendant in error of a cause in advance of the return

day of the writ of error, does not prevent the plaintiff in error from doing

what is necessary while the writ is in life, to give it full effect. Unless there is some color of a right to a dismissal, the court will not enter

tain a motion made to affirm.

Motions to dismiss or affirm.

A statement of the litigation in Davies v. Corbin, is contained in 112 U. S. 36, which was also a motion to dismiss. The grounds for the motion in Gaines v. Corbin, are substantially the same as those in the other case.

Mr. W. Hallett Phillips, with whom were Messrs. B.C. Brown, E. W. Kimball and C. P. Rii'ond, for the motions.-I. The writ of error in the case of Davies v. Corbin was never perfected. The record fails to show that any bond was given. That in the absence of a bond the writ of error will be dismissed, has often been decided. Sage v. Raila nad Co., 96 U. S. 712; National Bank v. Omaha, Id. 712.-II. Davies and Gaines are not entitled to prosecute writs of error. The mandamus to the county court constituted the judgment; the orders on the

Opinion of the Court.

rules to show cause against the tax collector, clerk and other officers, were merely in enforcement of that judgment. The levy and collection of a tax is not only an entire thing, although accomplished by successive steps and by separate officials, but is a continuous transaction. Labette Co. v. Moulton, 112 U.S. 225. Surely every one of the officials of the State who may have any action to take in the assessment, collection and payment of the tax, cannot prosecute a separate writ of error and make a separate “case” here, every time there is a levy attempted to be enforced under the writ of mandamus.—III. The judgments should be affirmed even if the cases are not dismissed. The writs of error are brought in the face of the repeated decisions of this court, to the effect, that it is 'no answer to a writ of mandamus from a United States court commanding a collection of a tax, for the tax officer to allege that he had been enjoined by a State court. It is plain the cases are brought here for delay only.

Mr. A. H. Garland opposing.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This is the second time a motion has been made to dismiss the case of Davies v. Corbin. The ground of the present mo tion is that the security required by g 1000 Rev. Stat. has never been given. Against this it is shown that a supersedeas bond was accepted by the judge who signed the citation on the 8th of April, 1884. The judgment brought under review by the writ of error was rendered on the 11th of February, 1884. The writ of error was sued out and served on the 7th of March, in the same year, and the citation was also signed and served on that day. The cause was duly docketed in this court by the defendant in error on the 22d of March, in advance of the return day of the writ. On the same day the defendant in error filed his motion to dismiss for other reasons than that now relied on. The plaintiff in error was notified that the motion would be presented to the court on the 14th of April. When the motion was filed the security had not been given, but before the time fixed for hearing it was tendered in proper form


and accepted. Early in the present term that motion was overruled.

The docketing of the cause by the defendant in'error in advance of the return day of the writ did not prevent the plaintiff in error from doing what was necessary while the writ was in life to give it full effect. The present motion to dismiss is, therefore, overruled.

The original rule allowing a motion to affirm to be united with a motion to dismiss was promulgated May 8, 1876, 91 U. S. vii., and in Whitney v. Cook, 99 U. S. 607, decided during the October Term, 1878, it was ruled that the motion to affirm could not be entertained unless there appeared on the record at least some color of right to a dismissal. This practice has been steadily adhered to ever since, and, in our opinion, prevents our entertaining the motion to affirm in this case. That motion is consequently


In Gaines v. Corbin and Another, there is a motion to dismiss, with which is united a motion to affirm.

These motions are denied. There is not sufficient color of right to a dismissal to make it proper for us to entertain a motion to affirm.

BOYER v. BOYER & Others, County Commissioners.

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The laws of Pennsylvania exempted from local tasation, for county purposes,

railroad securities ; shares of stock held by stockholders in corporations which were liable to pay certain taxes to the State; mortgages; judgments; recognizances; moneys due on contracts for sale of real estate ; and loans by corporations, which were taxable for State purposes, when the State tax should be paid. The pleadings in this case admitted, in detail, large amounts of exempted property under these heads in the State: Jeld, That, under these circumstances, this constituted a discrimination in favor

VOL. CU-44


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