Fraenkl v. Cerecedo Hermanos

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court. The assignments of error which require consideration assail the power of the court below to permit, the filing of the bill of review, and also question the validity of its -action in vacating the decree entered in the main cause and dismissing the, bill filed therein. Respecting the first, the proposition is that the limit of-■time within which- a bill of review might be filed had ex-, pire.d when leave was given, and that the court should have required payment of the money judgment, decreed in the. main cause before granting permission to file the.bill of review. These contentions are untenable. True- it is that in analogy to the time allowed by law for an appeal to .this court from a final decree of the District Court of Porto Rico, 'the bill of review'should have been filed in two years from June 8,' 1901, the date when the final decree sought to be reviewed was entered, and the bill of review'was not actually filed until Juné 22, 1903. But the bill was presented for filing on February 2, 1902, and it is plain that the failure of the complain-- . ..ants in the bill of review to actually file the same until June 22, 1903, was occasioned by the action of the court in not sooner passing upon the application for leave, to file. Under such circumstances, we think the time which elapsed between the^ *302 tendering of the bill for filing and tbe permission given to file .-Should not be counted'in applying the two years’ limitation. Ensminger v. Powers, 108 U. S. 292. As respects the granting of permission to file the bill of review, the court was vested with a judicial discretion to permit such filing without a previous payment of the moneys awarded by the decree sought-to.be reviewed,.and there was no abuse of such discretion in .giving leave to. file,- conditioned upon the furnishing of the indemnity bond which was thereafter executed. As to the .alleged error -in vacating the decree entered in and. dismissing the original-cause. — In the court below the allegation attacking the jurisdiction of the ..court-over the original cause was&s-'follows: “ That this .court did not .have jurisdiction <of the original cause-and bilí ¡of -complaint, for the reason ¡that, ¡according to the allegations'.of .said .bill, all the parties plaSmitiff -.were foreign subjects, and all the parties defendant were .citizens of Porto Rico, there being no citizen of the United States ¡or.of a State of the United States a party defendant, and no -other.or sufficient ground or reason for the jurisdiction of this court is in the said original bill set forth sufficient to give this court jurisdiction of the said cause.” The bill in the main cause was filed in December, 190®. At that time the jurisdiction of the court below was fixed and limited by § 34 of the act of Congress of April 12, 1900, commonly known as the Foraker Act, which established civil government in Porto Rico. It was provided in the section that the District Court of the United States for Porto Rico “shall have, in addition to the ordinary jurisdiction of District Courts of the United States, jurisdiction of all cases cognizant in the Circuit Courts of' the United States, and shall proceed therein in the same manner as a Circuit. Court.” That, in view of the parties to the controversy, the case would not have been cognizable in a Circuit Court of the United States is obvious, and hence, manifestly, the court below was without jurisdiction under the act of 1900. It is urged, how *303 ever, that as the final decree in the main cause was entered in June, 1901, although the court was clearly without juris-i diction to entertain the cause when the bill was filed, as no question as to jurisdiction had been raised, the court had power to enter the decree by virtue of the third section of the act of March 2, 1901,. 31 Stat. 953, chap. 812, .reading as follows: • “That the jurisdiction of the District Court of the United States for Porto .Rico-in civil cases shall, in addition to that conferred by the ;act of .April twelfth, iriineteen hundred, extend to and embrace'controversies wherce 'the ¡parties, or either -of them, are cifcms-oUthe United States, .®r >,citizens .or subjects of a foreign‘State .or States, wherein the ¡matter sin dispute exceeds, exdlansiwe.d'f.interest or costs, the,-aum-or value idffon.e thousand dolairs."’ Pacific R. Co. v. Ketchum, 101 U. S. 289, 298, Is .cited ¡as au-ithority for the proposhaon. Iii that case, however, not -only •was mo objection made toy the parties in the progress -of the cameito the right of the court to proceed, but the decree when rendered was consented to,, and the ruling was that although “Consent cannot give the courts of the United States jurisdiction, it ,may bind the parties and waive previous errors, if when the court acts jurisdiction has been obtained.” A brief consideration, however, of the circumstances in this case demonstrates that the Ketchum case is not in point. The last appearance of the defendants in the litigation in the main cause was on January 31, 1901, when a stipulation was made in respect to the tíme for pleading to the bill, and, of course, an exertion of jurisdiction by the court was neither invoked by the defendants nor consented to by them after the enactment of the amendatory statute of 1901. Under such circumstances it cannot be held that the defendants were estopped from availing of the objection of want of jurisdiction. The additional contention is made that the ease Presented by the bill in the main cause was one arising under the laws of the United States, and that because thereof' jurisdiction *304 existed, irrespective of the want.of citizenship of the parties. The argument is that the complainants, in their bill, made reference to the provisions of an order of the military governor of Porto'Rico concerning “suspension of payments,” which, ' if given -proper effect, Would have prevented 'the- accomplishment of the fraud which it was- the object of the bill to prevent. This order thus referred to, it is said, was, in legal effect, a law of the United States, and the reference to and reliance upon, its provisions was v an invoking of the jurisdiction of the court on the,Federal ground that the case was one arising undfer the laws ofthe-.United States.' In our opinion, however, there, is not even color for the proposition that the bill presented a controversy arising under a -law of the United States, even if the military order referred to be. treated as a law of the United States. To sustain such a contention it must appear that' a controversy of that nature was called to the attention of the lower court in such a way as to invoke its action thereon. In other words, after a case has been decided below parties may not, for the purpose of a review by this court, attempt to inject a Federal question into the cause by suggesting that it would have been possible by a latitudinarian construction of the pleadings to 'suggest that a right under the Constitution or a law of the United States was'relied upon. And of course in saying this we must not be understood as intimating that the assumed Federal question,, even if it had been called to the attention of the court below, would have had sufficient substantiality to have been the basis for jurisdiction. ' Affirmed.