the value adjudged in that action, together with interest and costs of former actions not paid, the whole aggregating $28,156.74, for which there was judgment. A bill of exceptions was taken from this judgment to the Supreme Court of Hawaii, which court, passing over the great majority of exceptions without ruling, sustained one which assigned error in the overruling of the motion of the defendant below for judgment non obstante veredicto. The case having been remanded for judgment pursuant to the opinion and mandate, there was a judgment, notwithstanding the verdict for the defendant. This in turn was affirmed by the supreme court of the Territory, and the present writ is sued out to review that judgment. Supreme Court of the United States. MARTINEZ V. INTERNATIONAL BANKING CORPORATION. SAME v. SAME. Appeals from the Supreme Court of the Philippine Islands. Nos. 79, 80. Argued March 3, 6, 1911. Decided April 3, 1911. SYLLABUS. The value of the matter in dispute in this court is the test of jurisdiction. (Hilton v. Dickinson, 108 U. S., 165.) Where the only question is the amount of indebtedness, which the security was sold to satisfy, that is the measure of the amount in controversy, and in the counterclaim for return of the property sold can not be added to the amount of the debt to determine the amount in controversy and give this court jurisdiction. (Harten v. Löffler, 212 U. S., 397, distinguished.) The mere fact that suits are tried together for convenience does not amount to a consolidation, and where the understanding of the trial judge was that there was no consolidation, this court will not unite the actions so that the aggregate amount will give jurisdiction. A judgment of the intermediate appellate court, reversing and remanding with instructions to enter judgment for plaintiff in accordance with its decision without fixing a definite amount, is not such a final judgment as will give jurisdiction to this court. Opinion by White, C. J. No dissenting opinion. These are two suits commenced in the court of first instance of the city of Manila on the same day, February 25, 1905, and numbered in that court as cases Nos. 3363 and 3365, respectively. In each suit the International Banking Corporation was plaintiff and Francisco Martinez and another person as the guardian of Martinez were defendants. After the present appeals were taken Martinez died and his administrator has been substituted in his stead. We shall separately summarize the proceedings below in the two cases to the extent it is necessary to do so to understand the proper disposition to be made of the appeals. Case No. 79 was a suit of an equitable nature brought by the bank against Martinez to foreclose a mortgage upon the steamer Germania, sell the steamer, and collect an alleged debt of P30,000, claimed to be secured thereby. By the answer and cross bill it was asserted that at the time of executing the mortgage Martinez was mentally incapacitated, and hence legally incompetent; that the whole transaction was void for fraud, duress, and conspiracy; that the alleged indebtedness was a part of the subject matter of the instrument sued on in the other case, the effect of which instrument was to supersede the mortgage sued on in this; and that plaintiff had wrongfully taken and held possession of the steamer and refused to account for its profits. As affirmative relief the setting aside of the whole transaction was demanded, as also the return of the steamer and an accounting of its profits. The court of first instance in substance sustained these defenses, dismissed the plaintiff's suit, and directed a return of the steamer. It was recited in the judgment: "This case was tried together with case No. 3365, it being agreed that the evidence taken on the trial pertinent to either or both cases should be considered by the court in the respective cases. On appeal the Supreme Court of the Philippine Islands reversed this judgment, held that the transaction was valid, and entered the following judgment: "It is ordered that the judgment appealed from the court of first instance of the city of Manila, dated March 29, 1906, be, and the same is hereby, reversed, and the record remanded to the court from which it came, with directions to that court to enter judgment in favor of the plaintiff and against the defendants, Francisco Martinez and his guardian, Vicente Illustre, for the sum of P28,599.13, and interest at the rate of 8 per cent per annum from the 1st day of January, 1904, with costs, and that the steamship Germania, if said judgment is not paid, be sold in accordance with law to pay and satisfy the amount of said judgment. No costs will be allowed to either party in this court.' Case No. 80.-This case was brought to recover a judgment for P159,607.81, with interest, and in default of payment for the foreclosure of an instrument alleged to be a mortgage the sale of certain real estate described in the mortgage execution in the event of a deficiency, and for general relief. By answer and cross bill the same general defenses were set up as in the other suit. It was further averred that the alleged considerations for the instrument sued on was "padded and fictitious," contained duplications of the same item, and included the item of P30,000, which was the subject of the other case; also, that the instrument sued on was not in law a mortgage, but was an agreement for the transfer of property with right of repurchase (pacto de retro), and that the defendant had never refused to perform such contract, but that the plaintiff had failed to perform its own obligations thereunder; also, that the plaintiff had wrongfully taken possession of the property in question and received its rents and profits. The defendant demanded that the entire transaction be set aside, that plaintiff's suit be dismissed, and that plaintiff account for the rents and profits it had received. The court of first instance found, against plaintiff and rendered judgment in favor of the defendant guardian for the gross amount of the rents adjudged to have been unlawfully collected by the plaintiff. The case was appealed to the Supreme Court of the Philippine Islands, and was there docketed as case No. 3472. The appellate court held "that the evidence is not sufficient to establish any of the defenses or counterclaims," and "that the defendant, Martinez, at the time the action was commenced, was indebted to the plaintiff in at least the sum of P159,607.81 was fully established by the evidence." The court, however, decided that the instrument claimed to be a mortgage was not such, but was a promise to sell real estate upon certain terms, and contemplates a subsequent contract of sale which should contain the terms stated in this document," and that sufficient facts were stated in the complaint "to constitute a good cause of action for the specific performance of the contract." * * * * * "It is hereby ordered that the judgment of the court of first instance of the city of Manila, appealed from and dated March 29, 1906, be reversed and the case remanded to the court from which it came with directions to the judge to enter judgment in favor of the plaintiff in accordance with the decision of this court, without special provision as to the costs of this appeal." cases "were * The present separate appeals from the aforementioned judgments of the Supreme Court of the Philippine Islands were then taken. The petition for the allowance of the appeal in the first case (No. 79 here; No. 3471 in the Supreme Court of the Philippine Islands) expressly recited that the amount in controversy therein "is 30,000, equivalent to $15,000 United States currency." It was, however, asserted that the cause was an incident and part of the same transaction and controversy involved in cause No. 3472," and that the two * * consolidated and tried together in the court of first instance." The appeal was allowed by one of the associate justices of the Supreme Court of the Philippine Islands. In doing so he declared "that * * * there was not a strict consolidation of the two cases * * between the same parties by virtue of an express order of the court and in accordance with the procedural law, and * * * the amount in litigation in the first of the said cases does not exceed $15,000 United States currency." However, substantially upon the ground of the "connection and intimate relation" between the cases "the doubt produced by reasons advanced as to whether or not the appeal interposed in case No. 3471 is admissible, notwithstanding the fact that the amount involved does not reach the sum of $25,000 United States currency," was left to be determined by this court. The appeal in the second case was allowed by the same justice, it being recited that it appeared "that the amount involved exceeds $25,000 United States currency.' In the argument at bar counsel for appellee moved that the two appeals be dismissed for want of jurisdiction in this court. Supreme Court of the United States. PEREZ Y FERNANDEZ v. FERNANDEZ Y PEREZ. Appeal from the District Court of the United States for Porto Rico. (220 U. S., 224.) No. 110. Argued March 17, 1911. Decided April 3, 1911. SYLLABUS. Where the District Court of the United States for Porto Rico has general jurisdiction under the act of March 2, 1901 (c. 812, sec. 3, 31 Stat., 953), its power to award relief because of the situation of the property involved against nonresident defendants not found within the district depends on section 8 of the act of March 3, 1875 (c. 137, 18 Stat., 472); and the rights of absent parties defendants not actually personally notified to have the suit reopened and to make defense depends on the proviso to that section. Where a defendant has not been actually personally notified as provided in section 8 of the act of 1875, but publication has been resorted to, he has a right to appear and make defense within a year, independently of whether he has had knowledge or notice of the pendency of the action by any methods other than those specified in the statute; and the court has no power to impose terms except as to costs. The District Court of the United States for Porto Rico, having permitted certain defendants not personally notified to come in and defend to do so but only on condition of showing they had not received the published notice, had no knowledge of the pendency of the suit and had no meritorious defense to the bill, the order is reversed, as the defendants have the right to have the case reopened without terms other than payment of costs. Opinion by White, C. J. No dissenting opinion. Reversed and remanded with directions for further proceedings in conformity with this opinion. José Antonio Fernandez, a judgment creditor of José Perez, in October, 1906, commenced in the court below this suit to unmask alleged fraudulent and simulated mortgages and sales of certain described real property of Perez, the judgment debtor, to the end that such property might be made available to pay the unsatisfied judgment debt. The defendants were José Perez, Victor Ochoa and his wife, all three alleged to be citizens and residents of Spain, and 10 persons alleged to be citizens and residents of Porto Rico, who were averred to be and were sued as the heirs at law of one Maristany. It was alleged that in the years 1899, 1900, and 1902 Perez, who was the registered owner of certain enumerated real estate, had executed and recorded deeds purporting to mortgage the same in favor of Ochoa and Maristany. These deeds, it was alleged, were simulations executed by Perez with the sole purpose of defrauding his creditors and preventing them from collecting their debts. It was additionally charged that to carry out the wrongful purpose which had caused the acts of mortgage to be drawn and recorded and in consequence of a conspiracy between Perez and Ochoa, the latter had in May, 1906,· sued in the court below to foreclose the apparent mortgages, and had procured an order of sale and a sale thereunder to be made by the marshal of the court, and at such sale had seemingly bought in the property and received a deed therefor. Ochoa, the alleged plaintiff, was charged to have been but an interposed person acting, not for himself, but for Perez, the ostensible defendant. Finally, it was charged that the property standing in the name of Ochoa, the alleged purchaser, had, despite the sale, continuously remained under the dominion and beneficial control of Perez. The prayer of the bill was for a decree recognizing the fraudulent and simulated character of the alleged mortgages and sale, that they be declared to be mere shadows cast upon the title of Perez, and that the decree further direct that the property belonging to Perez be ordered to be sold to pay the judgment debt. The 10 persons who were made defendants as heirs or representatives of Maristany having been personally summoned and having failed to appear, the bill was, in December, 1906, taken for confessed against them. On the 3d day of June, 1907, the counsel for the complainant moved for an order to summons by publication José Perez, Victor Ochoa, and his wife. The motion for the order was supported by a return of the marshal showing that the subpoenas issued to the parties named had not been served, because the marshal, after diligent inquiry, had been unable to find them in the district, and by an affidavit of counsel declaring that affiant "is unable to learn of the present whereabouts of said defendants, José Perez y Fernandez, Victor Ochoa y Perez, and his wife, Dolores Olavarricia, after duly inquiring, and that, therefore, personal service upon them is not practicable. The order was granted, directing that the defendants named be summoned by publication to appear on or before the 3d day of August, 1907, the publication to be made "in a newspaper of general circulation in Porto Rico, to wit, La Bandera Americana, once a week for six consecutive weeks." On September 13 following the defendants named not having appeared and proof of publication having been made, the bill was taken for confessed against them. On February 1, 1908, a formal decree was entered against all the defendants, holding the mortgages and sale to be void as mere simulations, and directing their erasure from the records. The decree recognized the right of complainant to collect his unsatisfied judgment by a sale of the property, and in fact directed the marshal to proceed under an execution which was in his hands to levy upon and sell the property. Within two months after the entry of this decree and before the marshal had executed it by sale of the property, appearance was entered for José Perez, one of the defendants, and shortly after for Ochoa, and application was made in the name of both to vacate the decree and allow them to defend the suit, on the ground that they were entitled to do so because they had not been personally notified. At the same time, in the same court, a Mrs. Perfecta Blanco, alleging herself to be a resident of Spain, filed her bill against the marshal as well as against José Fernandez and his attorneys of record, alleging that the complainant had in July, 1906, bought from Ochoa the real estate described in the Fernandez suit and that she was entitled to hold the property free from liability under the execution in the Fernandez case. The prayer was for an injunction pending the suit restraining the marshal from selling the property to pay the Fernandez judgment and for a final decree perpetuating the injunction. The application made by Perez and Ochoa to set aside the decree and allow them to appear and defend, and that of Mrs. Blanco for a preliminary injunction, were considered by the court at one and the same time. The court stayed, for a brief period, the sale of the property under the execution issued in the case of Fernandez v. Perez and the enforcement of the decree in the equity cause. * The stay granted by the court was extended from time to time. There were hearings and it may be, some evidence tending to show the existence of the facts referred to by the court in the conditions upon which it granted the stay and there was evidence to the contrary. Finally the court disposed of the matter by refusing to set aside the decree in the equity cause and hence declining to allow Perez and Ochoa to defend and refusing to grant the application for a preliminary injunction on the bill of Mrs. Blanco. From a final decree rejecting their application to set aside the equity decree and allow them to defend Perez and Ochoa appeal. |