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brought in a Circuit Court of the United States (jurisdiction being based on diversity of citizenship), to enforce the decree rendered in the Kentucky state court, and to compel the defendant to pay to the plaintiffs, respectively, the several sums which had been decreed in their favor. A decree to that effect was rendered. The whole amount which the defendant was required by the decree to pay was large enough to give this court jurisdiction on appeal, although the specific sum awarded to each plaintiff was less than the jurisdictional sum. The defendant appealed to this court, and a motion was made to dismiss the appeal on the ground “that the sum due to each complainant is severally and specifically decreed to him; and that the amount thus decreed, is the sum in controversy between each representative and the appellant, and not the whole amount for which he has been held liable.”

After observing that if that view of the matter in controversy was correct, this court was without jurisdiction, Chief Justice Taney, speaking for the court, said: “But the court think the matter in controversy, in the Kentucky court, was the sum due to the representatives of the deceased collectively, and not the particular sum to which each was entitled, when the amount due was distributed among them, according to the laws of the State. They all claimed under one and the same title. They had a common and undivided interest in the claim; and it was perfectly immaterial to the appellant how it was to be shared among them. He had no controversy with either of them on that point; and if there was any difficulty as to the proportions in which they were to share, the dispute was among themselves, and not with him.

“It is like a contract with several to pay a sum of money. It may be that the money, when recovered, is to be divided between them in equal or unequal proportions. Yet if a controversy arises on the contract, and the sum in dispute upon it, exceeds two thousand dollars, an appeal would clearly lie to this court, although the interest of each individual was less than that sum.

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“This being the controversy in Kentucky, the decree of that court, apportioning the sum recovered among the several representatives, does not alter its character when renewed in Iowa. So far as the appellant is concerned, the entire sum found due by the Kentucky court is in dispute. He disputes the validity of that decree, and denies his obligation to pay any part of the money. And if the appellees maintain their bill, he will be made liable to pay the whole amount decreed to them. This is the controversy on his part; and the amount exceeds two thousand dollars. We think the court, therefore, has jurisdiction on the appeal.”

The doctrines of Shields v. Thomas have been frequently recognized by this court. In the recent case of Overby v. Gordon, 177 U. S. 214, 218, the court, interpreting the decision in that case, said: “It was held that where the representatives of a deceased intestate recover a judgment against an administrator for an amount in excess of the sum necessary to confer jurisdiction to review, and such recovery was had under the same title and for a common undivided interest, this court had jurisdiction, although the amount decreed to be distributed to each representative was less than the jurisdictional sum.” See also The Connemara, 103 U. S. 754; Handley v. Stutz, 137 U. S. 366; New Orleans Pacific Ry. v. Parker, 143 U. S. 42, 51; Texas & Pacific Ry. Co. v. Gentry, 163 U. S. 353, 361; Davis v. Schwartz, 155 U. S. 631, 647.

It is said that as to any single one of the claims in question the plaintiffs in the present case could have released the lands in which they had an undivided interest, by paying that particular claim; therefore, it is argued, the value of the matter in dispute, as between the plaintiffs and such defendant, was the amount of the latter's claim. And so as to each separate claim. But that same thing could have been said as to the respective claims involved in Shields v. Thomas. The defendant there could have paid off any of the respective claims involved. This court, however, held that fact to be immaterial because the defendant disputed the validity of the

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original decree holding him liable for all the claims, and had no concern as to how the whole amount decreed against him was to be distributed. So here, the plaintiffs suing to protect their common undivided interest in lands put in peril by fraudulent orders obtained by the defendants acting in combination to obtain such orders for their benefit, are only concerned in preventing the defendants from proceeding under the orders of the Probate Court, which they procured for their benefit equally, and under which they all now equally claim. The plaintiffs made no contest as to particular claims. They dispute all of them as claims against Hiram Evans' estate. If the orders of the Probate Court stand for the benefit of the respective defendants, then the plaintiffs' interests in the lands are liable for all the claims asserted by the defendants; for there is no dispute here as to the amount of any particular claim. Hence, as we have said, the value of the matter in dispute is the aggregate amount of the claims fraudulently procured by the defendants acting in combination to be allowed in the Probate Court as claims against the estate of Hiram Evans.

For the reasons stated we hold: 1. That it was competent for the Circuit Court upon the case made by the bill to deprive the defendants, acting in combination and claiming the benefit of the orders made in the Probate Court allowing their respective claims. 2. That the value of the matter in dispute in the Circuit Court was the aggregate amount of all the claims so allowed against the estate of Hiram Evans.

The decree is reversed with directions to set aside the order dismissing the suit for want of jurisdiction, to overrule the demurrer, and for further proceedings as may be consistent with this opinion and with the law.


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Statement of the Case.

196 U. s.




No. 419. Argued January 27, 1905.-Decided February 20, 1905.

In an action for mandamus against a judge of a territorial court in New

Mexico, who, after the appeal, ceased to be judge and whose successor has consented that the action be revived against him, this court may, under the act of Congress of February 8, 1899, if in its judgment necessity exists for such action in order to obtain a settlement of the legal questions involved, substitute the name of the successor in place of the original appellee. In this case this court orders the substitution, the party sub

stituted not to be liable for any costs prior hereto. A court cannot acquire jurisdiction over the person of a defendant except

by actual service of notice upon him within the jurisdiction or upon some one authorized to accept service in his behalf, or by his waiver, by gen

eral appearance or otherwise, of the want of due service. Service of a summons in an action in territorial court of New Mexico on

the president of a railway corporation, while passing through New Mexico as a passenger on a railroad train, held insufficient as a personal service of a corporation organized under an act of Congress, having offices in New York, Kansas and Illinois, and none in New Mexico; the mere ownership of lands, the bringing of suits to protect such lands, in New Mexico does not locate the corporation in New Mexico for the purposes of a personal action against it based on such a service of the summons. Nor was such service authorized by the Compiled Laws of New Mexico,

1897. Although the state of the statute law in respect of suits like this may oper

ate injuriously at times the situation cannot be changed by the courts— that can only be done by legislation.

This appeal brings up for review a final judgment of the Supreme Court of the Territory of New Mexico denying an application to that court by the Caledonian Coal Company for a writ of mandamus to compel Benjamin S. Baker, Judge of the District Court of the Second Judicial District of that Territory, to take cognizance of a certain action brought in

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that court against the Santa Fé Pacific Railroad Company and others.

The petition for mandamus makes the following case:

On the seventeenth day of February, 1904, the Caledonian Coal Company, organized under the laws of New Mexico, commenced an action in the District Court of the Second Judicial District of that Territory against the Santa Fé Pacific Railroad Company, the Atchison, Topeka and Santa Fé Railroad Company, the Colorado Fuel and Iron Company and the American Fuel Company, to recover damages for alleged violations of the Interstate Commerce Act of 1887 and the Anti Trust Act of 1890.

By the ninth section of the above act of 1887 it is provided that “any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any District or Circuit Court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.

24 Stat. 379, c. 104. And by section 7 of the above act of 1890 it was provided that “any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States in the District in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee.” 26 Stat. 209, c. 647.

A summons was issued against the Santa Fé Pacific Railroad Company and was returned by the Marshal of the Territory, the return stating that it was served at the above district on


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