Lowe v. The Benjamin

GRIER, Circuit Justice. It is well settled that where a case is dismissed for want of jurisdiction apparent on the face of the record, the court will award costs to neither party; and this for the reason that the court, manifestly having no jurisdiction, cannot inquire into the facts, and of course can give 1017 no judgment. While, at the same time, as the parties are in court for the purposes of the suit, the court will order the costs of the motion, as distinguished from costs of the suit or costs generally, to be paid to the party moving. Ex parte Davis, 5 Cow. 33; People v. Judges of Madison Co., 7 Cow. 423. Put where, on the showing of the plaintiff’s writ and declaration, the court has apparent jurisdiction of the subject-matter of the cause, and the want of jurisdiction is first disclosed by the plea and evidence, the defendant ought to have judgment for his costs, in the same manner as if he had succeeded on the trial by the interposition of any other plea: and this for the reason that the parties are in court on the issue, and judgment has been rendered thereon. The case before us is of the latter sort: The libel showed no want of jurisdiction. It, on the contrary, was regular enough, and the want of jurisdiction was first stated in the answer. Jurisdiction was one of the issues tried, and the subject of evidence and argument on both sides, as well in the district court as here. The parties were before the court, which had jurisdiction of the subject thus presented to them for trial. After some consideration, we can discover no good reason why the defendant should not recover his costs, which, in accordance with a reputable precedent (Thomas v. White, 12 Mass. 370), we decree accordingly.