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found in Drascovich v. Equitable Trust Company of New York, 3 F. (2d) 724, just decided.

The present controversy is a petition of the Equitable Trust Company, the complainant in the foreclosure proceedings, for additional compensation of $3,500, to be paid by the special master to Jared How, one of the counsel, for services after August 29, 1916. This additional compensation is to be paid out of a fund remaining in the hands of the special master, which, in his third supplemental report, dated September 25, 1923, he stated was interest, amounting to $18,847.79, accumulated upon funds he held and had deposited on interest for the payment of bondholders who had not presented their bonds to the special master for payment prior to October 28, 1916.

ed and paid prior to that date. It is worthy of observation that counsel for the Equitable Trust Company, in their brief, recognized the impropriety of the trust company's taking part in this controversy, "because it could hardly help placing itself in hostility to some of the bondholders and favoritism to others." The explanation was made, however, that counsel for the trustee in his argument asserted that it was not to be understood as an argument in advocacy of the cause of any bondholder against any other, but was merely an attempt to aid the court to a just disposition of the interest money. This was the duty of the counsel under any circumstances, and does not, in our opinion, call for further compensation, in addition to the liberal compensation he had already received.

We may therefore place our affirmance of the decree of the lower court upon the ground that it does not appear that the claim is superior in its equity to that of the bondholders, in whose favor it has been decreed in Drascovich v. Equitable Trust Co., supra.

In the lower court the attorneys representing these nonappearing bondholders objected to the payment of this claim out of funds belonging equitably to these nonappearing bondholders. They said: "We see no reason whatever why any part of this interest money should be paid to Mr. How, the attorney for the majority bondholders, as a fee or otherwise. The special master had his own attorney, Mr. Thomas. It does not appear that Mr. How was ever employ- BOSTON ACME MINES CORPORATION et ed by the special master, nor does it appear from Mr. How's affidavit that he has ever performed any services on behalf of the bondholders in connection with this fund. The mere fact that the trustee for the majority bondholders is willing that Mr. How should receive $3,500 out of the fund seems to us to furnish no reason for its payment." The court disallowed the claim, and the complainant has appealed.

In Drascovich v. Equitable Trust Co. of New York we affirmed the decree of the District Court, holding "that funds left in the hands of the special master after October 28, 1916, and not withdrawn by the beneficiary entitled thereto, were funds belonging equitably to the beneficiaries in the proportionate distribution ordered, and if the special master, under the order of the court, kept such money on deposit in bank at interest, such interest belongs in equity to the beneficiaries identified by the order, whose money was left in the hands of the special master and earned the interest."

In this petition we are dealing with the same fund, and we must treat it in the same manner. Its equitable ownership has already been determined. It is the accumulated interest on bonds not presented to the special master prior to October 28, 1916, as distinguished from bonds that were present

al. v. SALINA CANYON COAL CO. et al.

(Circuit Court of Appeals, Eighth Circuit. January 10, 1925.)

No. 6715.

1. Trial 2-Court may set aside order consolidating causes.

The court has power to set aside an order consolidating causes for trial, and orders remanding one of the causes to the state court and dismissing the other have the effect of vacating the order of consolidation.

2. Courts 405 (5)-Review by Supreme Court is given only where jurisdiction of District Court as federal court is involved.

Court on the ground that a prior action is pending in a state court involving the same subjectmatter, the dismissal is not for lack of jurisdiction as a federal court, which alone makes it reviewable by the Supreme Court, and denies jurisdiction to the Circuit Court of Appeals. under Judicial Code, §§ 128, 238 (Comp. St. §§ 1120, 1215).

Where a cause is dismissed by a District

during the pendency of a suit involving the Company, hereafter called Salina Company,

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alleged that Klemm had acted as the agent of the intervener in contracting with the owners of the land for the purchase of the coal and mineral rights, although Klemm had executed the contract in his own name as purchaser. There were further allegations that Lehman, acting as an agent or trustee for the intervener and obligated to complete the payments to the vendors under the contract which Klemm had made, had failed to execute his trust, and had procured the title to the property to be taken in his own name, and had organized the Salina Company as a corporation, in which he had had nearly all of the capital stock issued to himself, and had conveyed the property to it, but in trust for himself. There were other allegations as to claimed breaches of trust by Lehman as to other property. The intervener asserted that Lehman and the Salina Company held all of this property in trust for the intervener, and that the title thereto should be decreed to be in the intervener. Claiming that, therefore, a separable controversy existed between the Salina Company and itself, the prayer, as stated, was that the Development Company should be allowed to intervene for the purpose of removing the suit to the District Court of the United States. A bond was filed and an order of removal was made upon this petition by the state court on July 3, 1922.

to the bill in the suit begun in the United States court, but the record does not show what they were. On September 7, 1922, a stipulation was made between the Development Company and the Salina Company and Lehman, reciting that the parties, subject-matter, and issues to be tried in the two actions then pending were substantially the same throughout, and that a decision in one would be an effective disposition and decision in the other, and that they might be consolidated, both for settling pleadings and for trial; that the answer and counterclaim of the Development Company in the suit removed from the state court should be taken as the bill in the other case, being in substance the same, and but little different in verbiage from the amended. bill filed on August 12, 1922. Further stipulations were made as to filing the answer and counterclaim of the Salina Company and Lehman in the case begun in the United States court and as to a reply thereto, and providing that the consolidated cases should then be at issue.

On the day this stipulation was filed the court made an order generally following the terms of the stipulation, and providing that the two actions "are hereby consolidated, both for settling the pleadings, and for trial on the merits, and for all purposes of appeal or review, until final disposition of the cases as one case." At a later date, on The Development Company filed an an- November 25, 1922, another amended bill of swer and counterclaim in this suit on Au- complaint was filed, in which the Boston gust 22, 1922. Only a portion of it is conAcme Mines Corporation appears as a cotained in the record, but it recites that the plaintiff with the Development Company. Development Company had theretofore in- By this amended bill Klemm was made a tervened and been made a party, answered defendant for the first time to the suit beto some of the allegations of the Salina gun in the United States court. In this Company's complaint, and set forth what it amended bill was set forth more at length stated was a counterclaim. A reply was the allegations which the Development Comfiled by the Salina Company on September pany had outlined in its answer and peti14, 1922. Meanwhile in the suit which the tion in intervention filed in the state court. Development Company had begun in the The relationship of the Boston Acme Mines United States court the Salina Company Corporation to the Development Company and Lehman had filed an answer and coun- was also alleged as that of parent and subterclaim on July 29, 1922. Only a portion sidiary corporations, one holding the stock of this pleading is in the record, but it ap- control of the other. The agency and truspears from the portion of the counterclaim teeship of Klemm and of Lehman for the pleaded that these defendants asserted that plaintiffs was alleged, and the acts of each the Salina Company was the owner and in taking title in his own name, which were was in possession of the property, and they alleged as done for the benefit of the plainalleged that the Development Company tiffs, and the prayer was for a decree declaimed some interest therein, asserted that claring that the defendants held the propit had no estate or interest whatever, and erty in trust for the plaintiffs. The pleadprayed that the title of the Salina Com- ing contained: "And by way of answer to pany should be quieted as against any the complaint of the Salina Canyon Coal claim of the Development Company. Some Company in its suit No. 6889 herein, begun amendments were made on August 12, 1922, and filed in the district court of Sevier

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cases, treating each case as if it still existed as a separate suit. At the trial there was continued reference to each of the cases by the separate numbers, and finally motions were made by the Salina Company to remand the case No. 6889, and to dismiss the case No. 6792.

[1] The order of the court made on September 26, 1923, was that case No. 6889 be remanded to the state court, and the order made September 27, 1923, was that case No. 6792 be dismissed, that the plaintiff take nothing by its bill in equity, and that the defendants go hence without day. In this condition of the record, it cannot be said that there was but one suit pending at the time of the orders complained of. By their pleadings the parties had kept the issues separate in each of the cases. Furthermore, the court had power to make an order setting aside the order of consolidation (Colburn v. Hill, 101 F. 500, 507, 41 C. C. A. 467; 1 Corp. Jur. 1137, 1138), and the order remanding one of the cases and dismissing the other had the effect of vacating the order of consolidation. The trial court was of the opinion that case No. 6889 was improperly removed, because the defendant Klemm was a necessary party, and both he and the plaintiff were citizens of Utah. We are precluded from a review of the action of the court remanding this case, both by the terms of section 28 of the Judicial Code1 which provides, "Whenever any cause is removed from any state court into any District Court of the United States, and the District Court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the District Court so remanding such case shall be allowed," and by the fact that the appeal was taken only from the decree of September 27, 1923, and did not purport to be taken from the order of remand entered September 26, 1923.

[2] The appellees object to a review of the decree of dismissal on the ground that the trial court dismissed the suit for want of jurisdiction, and therefore an appeal should have been taken to the Supreme Court. On the face of the decree the judgment appears to have been on the merits, but, looking at the grounds for the dismissal, as the appellees do in their discussion of this proposition, it appears that the appellees made a motion for a dismissal of case No. 6792 for lack of jurisdiction, and

the court was of the opinion that, after having remanded case No. 6899 to the state court, there was such a conflict of jurisdiction between the state court in that case and the United States Court in case No. 6792 that the latter court was prevented from exercising jurisdiction to determine the issues in case No. 6792, and therefore the dismissal was entered.

The review that is given to the Supreme Court and denied to this court by sections 128 and 238 of the Judicial Code (Comp. St. §§ 1120, 1215), in cases where the jurisdiction of the District Court is in issue, is given only in those cases where the jurisdiction of the District Court as a federal court is involved; but, where the dismissal is on the ground that a prior action is pending in the state court of such a nature as may lead to a conflict between the courts as to matter in controversy, the dismissal is not for lack of jurisdiction as a federal court, but because of the general principles of jurisprudence and of the rules governing the action generally of courts of concurrent jurisdiction in their relations to each other. Louisville Trust Co. v. Knott, 191 U. S. 225, 233, 235, 24 S. Ct. 119, 48 L. Ed. 159; Bache v. Hunt, 193 U. S. 523, 525, 24 S. Ct. 547, 48 L. Ed. 774; Fidelity Trust Co. v. Gaskell, 195 F. 865, 869, 115 C. C. A. 527. This court, therefore, has jurisdiction of this appeal.

[3] The appellants claim that there was no conflict of jurisdiction between the cases in the state and federal court, because the suit in the state court was not an action in rem, and that court had not taken possession of the property involved. The suit in the state court alleged the ownership and possession in the Salina Company of coal, mineral, and timber in and upon 2,410.35 acres of land in Utah, asserted that the defendant Klemm claimed, without right, some interest therein, and prayed a decree barring him from asserting any further claim. This was a suit to quiet the plaintiffs' title, permitted in this form by section 7247 of the Compiled Laws of Utah 1917. Parley's Park Silver Mining Co. v. Kerr, 130 U. S. 256, 261, 9 S. Ct. 511, 32 L. Ed. 906; Glasmann v. O'Donnell, 6 Utah, 446, 450, 24 P. 537. It was not an ordinary action in personam, but was in the nature of a suit in rem, and sought a decree declaring the title to the property. The rule governing as to suits of this nature was stated by this court in Zimmerman v. So Relle, 80 F. 417, 420, 25 C. C. A. 518, 521, as follows: