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tion to be put upon question D; the "Blue Book” constituting, as he suggested, the basis of the negotiations leading up to the contract. But the offer was strenuously objected to by the employer for any purpose; one counsel urging:

"That any prior negotiations between the employer and employé would shed no light on this controversy. It would tend to cloud the issue. Therefore it is immaterial. The rule of law is that an offer to compromise or prior negotiations are not admissible in evidence at all. In other words, the court goes right to the merits of the present transaction. For the purpose of eliminating such matters, I think the board should not consider any prior offers · or counter offers on the part of the employer or the employé."

And another of counsel used this language:

"The fundamental error lies in counsel's statement that these antecedent negotiations are the basis of this arbitration. He said that and he said it quite heatedly, and that is the time when I wanted to ask him a question. The antecedent negotiations are not the basis of this arbitration. Your honorable body is called together under an act of Congress. The act has specified that the questions to be submitted to the board shall, with a good deal of formality, be stated as the basic matter invoking the jurisdiction of a board. That has been done. We have now here before us, in conformity to the act, a statement in writing of the matters that are in issue between us. The antecedent negotiation is just as much shunted and pretermitted by the filing of the statement of the matters in issue between us under the interstate commerce act as the antecedent matters are between two pritate litigating parties when one of them files a complaint and the other files an answer. It is then put in issue. It is an error fundamental to say that the basis of this matter is anything antecedent to the signing and filing of the agreement to arbitrate. That is the only limit to your jurisdiction. It not only limits, but it delimits it. Your jurisdiction is as broad as the matter set forth in the articles. It is no broader. You are a body sitting here to determine law and fact. You are a court. The learned gentleman says you cannot determine these matters in issue between us without resorting to the antecedent negotiations. That is error.

If you cannot determine it without resorting to illegal and incompetent evidence, that is a practical difficulty in the way, which sometimes—but rarely-happens. The law of convenience does not govern in judicial matters. There could be a case where a party would be practically cut off by the laws of evidence of the state from proving a case. That is a practical difficulty. He says they cannot be determined without resorting to these writings, these printed matters, these negotiations, these offers upon the one side and upon the other side, to determine it. I submit, with all gravity, that you can only find what the issues are between us by an inspection of the four questions stated in the articles of agreement."

And one of the very reasons urged at the time by counsel for employer in support of their attitude as above stated was that there was nothing to show what the parties had in mind at the time of signing the agreement but the instrument itself. As a result, the offered evidence was excluded and the board refused to consider it. At the argument before the court a question arose between counsel as to whether this “Blue Book” was not subsequently put in evidence; counsel for employer insisting that it had been. But the record does not show that it was, and the book, while found among the papers, unlike all other exhibits, bears no file or identification mark. For the

. reasons stated, however, it is immaterial to determine whether the evidence was before the board for its consideration or not.

It would be difficult, I think, to state the rule as applicable to this case more forcibly than counsel for employer have thus put it; and

155 F.-64

I am satisfied therefrom that the construction placed by the board on question D was unwarranted, and that its finding thereunder was outside the issues submitted by the parties. The facts therein found, not being within the issues, the finding must be held nugatory and not binding upon either party. Bogan v. Daughdrill, 51 Ala. 312; Richardson v. Payne, 55 Ga. 167; Gordon v. Tucker, 6 Me. 247; McBride v. Hogan, 1 Wend. (N. Y.) 326; Bullock v. Bergman, 46 Md. 270.

3. As to the motion for judgment on findings B and C, it is at least doubtful if, under this act, a judgment can be had on part of the award when a part is set aside; and it is likewise doubtful, independently of the act, whether under the general rules applicable to proceedings of this character the issues submitted here are not so interdependent and inseparably a part of one controversy that they must all stand or fall together. But, if I am correct in my reading of the act, the motion is premature, and those questions not now before the court. As we have seen above, the act provides that, where exceptions are filed to the award, it shall go into effect, "and judgment be entered accordingly when such exceptions shall have been finally disposed of, either by said circuit court or on appeal therefrom.” The same section further provides:

“At the expiration of ten days from the decision of the Circuit Court upon exceptions taken to said award, as aforesaid, judgment shall be entered in accordance with said decision, unless during said ten days either party shall appeal therefrom to the Circuit Court of Appeals. * * * The determination of said Circuit Court of Appeals upon said questions shall be final, and being certified by the clerk thereof to said Circuit Court, judgment pursuant thereto shall thereupon be entered by said Circuit Court."

From these provisions, it would seem that it is not contemplated by the act, where exceptions are urged against the award, that judgment shall be entered by the Circuit Court until the expiration of 10 days after the decision on the exceptions. If no appeal has then been taken from such decision, judgment shall be entered, either putting into effect or setting aside the award as the circumstances may warrant. If within the 10 days, however, an appeal be taken, then the entry of judgment must await the determination of such appeal, when final judgment may be entered pursuant thereto. Very evidently the act does not warrant a piecemeal judgment such as contemplated by the motion; but one final judgment, which shall be determinative of the whole matter.

Having in view the very commendable object aimed at by the act, regret much the necessity of reaching a conclusion the result of which, if sustained, will be partially, if not entirely, to set at large the differences between the parties out of which the controversy arises. The evident purpose of the law was to afford a ready, summary, and speedy method of amicably adjusting labor disputes arising between the class of employers and employés to which it applies; and, the case being a pioneer thereunder, a more satisfactory result of its operation would have been desirable. There are certain features of the act, however, which, although doubtless intended to add to the simplicity of the procedure provided therein, are calculated to result, as in this case, in making cumbersome and burdensome its operation, and to largely negative and defeat the object of a speedy determination of a controversy. As noted above, the entire record-papers, testimony, and exhibits—consisting in this case of something over 3,000 pages, is treated as a bill of exceptions for the purpose of review in this court. This would not be so objectionable in itself if there was any requirement at the hands of the excepting party of presenting a specification of the errors relied upon in some such form as would definitely point out the objections involved in the exceptions. In this instance, the exceptions filed were in the most general terms, with no attempt therein or in the brief of counsel to point out the particular page, or even the volume in which any obnoxious evidence or ruling was to be found. As a result, the evidence upon all the issues being intermingled, the court has been put to the necessity of searching through the entire record at the expense of much valuable time, and the great and unnecessary delay of its conclusion. This result could be avoided, either by providing, as in other instances, for a bill of exceptions presenting only the specific errors relied upon, or by a provision requiring the party excepting to the award to file such a specification of errors as would serve to point more particularly the rulings complained of.

For the reasons above stated, the exceptions to finding A will be overruled, the exception to finding D will be sustained, and the motion for judgment will be denied. Let an order be entered to that effect.



ROSS v. ULMAN et al.

(Circuit Court, S. D. West Virginia. August 15, 1907.) 1. EQUITY-CROSS-BILL-SUIT BETWEEN TENANTS IN COMMON.

While a cross-bill cannot be maintained in a suit after it has been settled, a tenant in common who has been impleaded in a suit between the co-tenants to establish the interest of each and obtain partition, and whose interest is admitted by the pleadings, cannot be deprived of the right to file a cross-bill therein at any time it may become necessary to protect his interest in the property by a settlement between his co-tenants.

[Ed. Note. For cases in point, see Cent. Dig. vol. 19, Equity, $ 465.] 2. SAME-BRINGING IN NEW PARTIES BY CROSS-BILL.

New parties may be brought in by a cross-bill which seeks affirmative relief, and is not merely defensive, when they are necessary to the granting of such relief.

[Ed. Note. For cases in point, see Cent. Dig. vol. 19, Equity, $ 467.] 3. COURTS-JURISDICTION OF FEDERAL COURTS-ANCILLARY PROCEEDINGS.

A resident of the District of Columbia, although not a citizen of a state within the constitutional provision giving the federal courts cognizance of suits between citizens of different states, may maintain a cross-bill in a suit in such a court for relief which is ancillary to that sought in the original suit; the citizenship of the parties in such case being immaterial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 801.

Supplementary and ancillary proceedings and relief, see note to Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 36 C. C. A. 195.]

In Equity. On demurrers by Alfred J. Ulman, the Crozer Land Association, and the Pocahontas Coal & Coke Company to the crossbill of Samuel Ross.

At August rules, 1889, in the circuit court of McDowell county, W. Va., Alfred J. Ulman filed his bill against William R. Iaeger, William G. W. Iaeger, Lindon Kent, S. C. Neal, Enoch Totten, Henry S. Parmalee, trustee, Charles Benjamin Wilkenson, Charles P. Jenney, trustee, and Charles C. Harrison, and at September rules following he filed an amended bill against the same parties and one Elias Adler, in which he alleges, substantially, that on the 24th day of December, 1872, the defendant William R. Iaeger was the owner of a tract of 150,000 acres of land, known as the "Robert Pollard survey," chiefly situate, lying, and being in the county of McDowell, W. Va.; that the said William R. Iaeger on that day sold and conveyed to him, as tenant in common, one undivided fourth thereof by a deed of record in said McDowell county; that the land was entered upon the assessor's books in the name of himself and the said W. R. Iaeger in the year 1873, and returned delinquent in their names for the nonpayment of taxes for that year, and, not having been redeemed, was sold and purchased by the state; that at the April term, 1881, of the circuit court of McDowell county, H. C. Auvil, commissioner of school lands for said county, filed his petition against said 150,000 acres, asking a sale thereof for the benefit of the school fund of the state; that prior to this time he, the said plaintiff, had conveyed by deed to Lindon Kent, s. C. Neal, and Enoch Totten one-fifth undivided of his one-fourth undivided interest in said land, and to said proceeding instituted he, the plaintiff, William R. Iaeger, Kent, Totten, and Neal were made parties, and such proceedings were had therein that something over 7,000 acres of said land were sold by said commissioner of school lands and these sales were confirmed; that pending said proceeding the said plaintiff and William R. Iaeger filed their joint petition in said proceeding, asking to redeem said land, and also their joint petition to remove the cause to the federal Circuit Court, and further took and obtained an appeal to the Supreme Court of Appeals from the orders entered; that the federal court remanded said matter to the state court, and the Supreme Court dismissed said cause; that on the 8th day of February, 1883, the said W. R. Iaeger conveyed the equity of redemption in his three-fourths undivided interest in said tract of 150,000 acres of land to the defendant William G. W. Iaeger, his father, and, after various other proceedings had, the school commissioner, H. C. Auvil, sold said 150,000 acre tract of land for the taxes due thereon, which sale at the May term, 1887, was confirmed, and subsequently said commissioner Auvil conveyed said land to W. G. W. Iaeger alone; that such sale and conveyance to Iaeger alone was made without the knowledge or consent of plaintiff, and had only been discovered by him, plaintiff, a short while before bringing this suit; that on the 23d day of April, 1888, the said defendant, W. G. W. Iaeger, by a deed, conveyed the whole of said tract of land to Henry S. Parmalee, in trust to secure Charles Benjamin Wilkenson $16,000, and on March 26, 1889, he made another conveyance of the whole of said tract to the defendant Charles P. Jenney, trustee, to secure Charles C. Harrison $60,000; that he, the plaintiff, purchased his one-fourth interest from the said William R. Iaeger originally through Elias Adler; that said William R. Iaeger on April 3, 1874, conveyed said one-fourth undivided interest to said Adler, who was simply a trustee for plaintiff, he, the plaintiff, having paid the purchase money, and that said Adler on July 30, 1881, conveyed to him said undivided fourth, and that by this purchase and this conveyance the said W. R. Iaeger was first, and the said W. G. W. Iaeger subsequently became, tenant in common with him in said tract of land, and that all proceedings had in the redemption of said land were conducted by the said Iaeger on behalf of themselves and as co-tenant and agents of plaintiff and by his authority; that the said W. G. W. Iaeger repeatedly importuned plaintiff to buy his said interest, and plaintiff had no knowledge of his purpose to take from the commissioner of school lands a conveyance of the whole title thereto.


The plaintiff then charges that the purchase of said land by W. G. W. Iaeger from Commissioner Auvil inured to the benefit of himself and the said Iaeger, and had the effect to restore and reinstate the title to the 150,000 acres in them; that the deed of trust executed thereon by W. G. W. Iaeger to secure Wilkenson the sum of $16,000 had been paid off, and that the deed of trust executed by him to secure Harrison $60,000 was a sham, fraud, and device; that said Harrison never loaned to said Iaeger said sum of $60,000, but only a. small part thereof, and that both of said trusts were taken in fraud of plaintiff's rights, with full knowledge of such rights and interest; that the same constitute clouds upon his title and interest in the said tract of land.

And the prayer of the bills are, substantially, that these clouds be removed; that the purchase from Auvil, commissioner, by W. G. W. Iaeger, be held to have been made for the benefit of himself and the plaintiff ; that partition of the land be made, and that an accounting be had between said W. G. W. Iaeger and plaintiff on account of taxes and expenses incurred in perfecting the title.

To this cause the defendant William G. W. Iaeger in 1889 appeared and filed his petition, alleging, among other things, that the suit was wholly between citizens of different states; that each adverse party was a citizen of & different state; that the plaintiff Alfred J. Ulman was a citizen of the state of Maryland ; that he, W. G. W. Iaeger, was a citizen of the state of New York; that the defendants Charles P. Jenney and S. C. Neal were citizens of the state of Virginia, Elias Adler of Maryland, Parmalee, Wilkenson, and Harrison of Pennsylvania, Lindon, Kent, and Totten of the District of Columbia, but neither had any interest in the suit and were improperly made defendants therein; that W. R. Iaeger was a citizen of the state of West Virginia, but had not any interest in the suit and was improperly made a party thereto, or, at least, could be considered only a formal party, and upon this petition, against the protest of plaintiff, the cause was removed to this federal court. During the course of the proceeding—whether in the state court before removal or after is not very clear, for portions of the records in both courts have become lost or mislaid-W. G. W. Iaeger filed his answer and also a cross-bill. By this answer and cross-bill, it was made apparent that new and additional parties were required because of various interests held by them, and plaintiff was required by order of court to file an amended bill, making, among others, Samuel Ross a party defendant because it appeared that while Ulman, the plaintiff, pending a suit, had conveyed to Totten, Kent, and Neal one undivided fifth of his undivided fourth interest, and that Totten and Kent, by subsequent deed, had conveyed back to laeger, that, on the other hand, Neal had conveyed his interest amounting to one-eightieth share to said Ross on November 14, 1889. This amended bill was filed on June 10, 1900, and to it Ross filed his answer, setting up his title to said one-eightieth interest, and asking that in any partition which might be made his said interest should be fully recog. nized and protected.

On the 3d day of July, 1906, this defendant, Samuel Ross, filed his crossbill, in which he alleges himself to be a citizen of the District of Columbia, against the said Alfred J. Ulman, a citizen of Maryland, the Kanawba Bank ing & Trust Company, administrator d. b. n. c. t. a. of W. G. W. Iaeger, deceased, a West Virginia corporation, W. R. Iaeger, Martha G. Iaeger, citizens of West Virginia, Edwin Meyers and Anna I. Meyers, citizens of Pennsylvania, Samuel A. Crozer, John P. Crozer, and Mary Crozer Page, trustees of theCrozer Land Association, citizens of Pennsylvania, the Crozer Land Association, a Pennsylvania corporation, the Bouvier-Iaeger Coal & Land Company, a West Virginia corporation, the Ulman-Iaeger Coal & Land Company, a West Virginia corporation, and the Pocahontas Coal & Coke Company, a West Virginia corporation. In this cross-bill Ross sets forth the purpose and objects : of the original bill substantially as above set forth, and that by subsequent proceedings and compromises had in the original cause all questions had been substantially settled and all relief obtained, save and except the partition between Ulman and his alienees and Iaeger and his alienees; that Ülman pending the suit had granted to Totten, Kent, and Neal one-fourth of his (Ulman's) undivided fourth interest; that Totten and Kent had conveyed their interest.

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