KIRBY
v.
AMERICAN SODA FOUNTAIN COMPANY.

*143 Mr. J.M. McCormick for appellant.

Mr. John J. Weed for appellee.

*144 MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

This case was brought directly to this court on a certificate of jurisdiction under section five of the judiciary act of March 3, 1891, and might, therefore, have been advanced under Rule 32. The motions to dismiss or affirm may be treated as equivalent to submission under that rule, but as the motions were made, and the motion to dismiss was chiefly rested on the ground that the value of the matter in dispute was not sufficient to give this court jurisdiction, we think it proper to say that "the act of 1891 nowhere imposes a pecuniary limit upon the appellate jurisdiction, either of this court or of the Circuit Court of Appeals, from a District or Circuit Court of the United States." The Paquete Habana, 175 U.S. 677, 683.

On this appeal no question of error in matter of equity procedure in the retaining of the cross bill after the dismissal of the bill is open for consideration, but we do not intimate in the slightest degree that any error in that particular was committed. Chicago, M. & St. P. Railway Company v. Third National Bank, 134 U.S. 276; Daniell Ch. Pr. (5th ed.) 1553, note; Bates Eq. Proc. § 386.

The contention is that the Circuit Court had no jurisdiction as a court of the United States to proceed on the cross bill because of the lack of the prescribed jurisdictional amount. But we think the Circuit Court was right in rejecting this contention and in overruling the plea.

In the first place, the whole record being considered, the value of the matter in dispute might well have been held to exceed two thousand dollars, exclusive of interest and costs. Stinson v. Dousman, 20 How. 461, 466; New England Mortgage Company v. Gay, 145 U.S. 123, 131; Shappirio v. Goldberg, 192 U.S. 232; Lovell v. Cragin, 136 U.S. 130.

In Stinson v. Dousman the suit was brought to recover something less than five hundred dollars as rent of a parcel of land under a written contract for the purchase of the land *145 at eight thousand dollars, which provided that the covenantee should pay rent on failure to comply with sundry conditions prescribed, and defendant not only set up in his answer a defence to the claim for rent, but also sought a decree affirming the contract as outstanding. It was objected in this court that the matter in dispute was not of the value of one thousand dollars, and that therefore there was no jurisdiction. Mr. Justice Campbell said: "The objection might be well founded, if this was to be regarded merely as an action at common law. But the equitable as well as the legal considerations involved in the cause are to be considered. The effect of the judgment is to adjust the legal and equitable claims of the parties to the subject of the suit. The subject of the suit is not merely the amount of rent claimed, but the title of the respective parties to the land under the contract. The contract shows that the matter in dispute was valued by the parties at $8,000. We think this court has jurisdiction." The case is cited and considered in New England Mortgage Company v. Gay and in Shappirio v. Goldberg.

In Lovell v. Cragin it was held as correctly stated in the headnotes: "When the matter set up in a cross bill is directly responsive to the averments in the bill, and is directly connected with the transactions which are set up in the bill as the gravamen of the plaintiff's case, the amount claimed in the cross bill may be taken into consideration in determining the jurisdiction of this court on appeal from a decree on the bill."

In the present case the Circuit Court in its decree referred to the plaintiff's bill and the relief thereby sought, in connection with the cross bill, and, we think, was justified in doing this as the record had not passed from under its control, and it was apparent that the decree on the cross bill disposed of the contention of plaintiff in respect of the cancellation of the contract. Taking the bill, defendant's answer and the cross bill together, the jurisdictional amount was made out.

In the second place, it is the general rule that when the jurisdiction of a Circuit Court of the United States has once attached *146 it will not be ousted by subsequent change in the conditions. Morgan v. Morgan, 2 Wheat. 290; Clarke v. Mathewson, 12 Pet. 164; Kanouse v. Martin, 15 How. 198, 208; Roberts v. Nelson, 8 Blatchf. 74; Cooke v. United States, 2 Wall. 218.

In Morgan v. Morgan it was laid down by Chief Justice Marshall that the jurisdiction of the Circuit Court having once vested between citizens of different States, could not be divested by a change of domicil of one of the parties, and his removal into the same State as the adverse party pendente lite. This was so ruled in Clarke v. Mathewson and other cases there cited.

In Kanouse v. Martin, after petition to remove had been filed and bond tendered, the state court allowed the plaintiff to reduce the matter in dispute to less than the jurisdictional amount, and went on with the case. This was necessarily held to be erroneous, but the observations of Mr. Justice Curtis show that, in his opinion, the general rule to which we have referred also applied, and he cites Morgan v. Morgan and Clarke v. Mathewson.

In Roberts v. Nelson the amount claimed was reduced after the case had been removed, and Mr. Justice Blatchford, then District Judge, held that the jurisdiction of the court having once attached, no subsequent event could divest it.

In Cooke v. United States Mr. Chief Justice Chase said that "jurisdiction once acquired, cannot be taken away by any change in the value of the subject of controversy."

This action, when brought in the state court, was an action to recover $1,500 damages for deceit. Defendant demurred to and answered the original petition. Plaintiff subsequently filed his amended petition seeking to be relieved of the obligation to pay $2,025, and damages in the sum of $2,500. The matter in dispute having thus been made to exceed the sum or value of two thousand dollars, exclusive of interest and costs, defendant presented his petition and bond for removal, and the cause was thereupon removed. The jurisdiction thus acquired by the Circuit Court was not divested by plaintiff's subsequent action.

Decree affirmed.