This opinion was prepared by our Brother Brewer, and had been approved before his lamented death. It was then recirculated and is adopted as the opinion of the court.
On January 6, 1886, there was entered in the circuit court of the United States for the eastern district of Missouri a decree of foreclosure and sale of the Wabash, St. Louis, & Pacific Railway Company, hereinafter called the Wabash Company. In that suit, before the execution of the deeds to the purchasing committee, a railway corporation known as the St. Louis, Kansas City, & Colorado Railroad Company (hereinafter called the Colorado Company) and the city of St. Louis intervened to compel the Wabash Company to give to the Colorado Company the use of its tracks and a right of entrance over them to the Union depot of that city. On that intervention a decree was entered finding the equities in favor of the interveners, and granting the Colorado Company the use of the tracks and right of way. 29 Fed. 546. On appeal to this court the decree of the circuit court on the intervention was, on January 19, 1891, sustained. Joy v. St. Louis, 138 U.S. 1, 34 L. ed. 843, 11 Sup. Ct. Rep. 243.
A dispute having arisen as to the rights granted by that decree, a petition was filed at the March term, 1902, of the circuit court in the original foreclosure case to enforce those rights as the Colorado Company claimed they existed. A large amount of testimony was taken upon this application, and a decree entered April 2, 1906. Thereupon an appeal was taken to the circuit court of appeals for the eighth circuit, which, on April 3, 1907, reversed the decree and remanded the case 'with directions to enter a decree not inconsistent with the views' expressed in the opinion of the court. 81 C. C. A. 643, 152 Fed. 849. The case went back to the circuit court, and after an amendment to the petition, which was allowed by the court, a decree was entered in obedience to the mandate, from which decree an appeal was again taken to the circuit court of appeals, and also to this court. On the appeal to the circuit court of appeals the record was filed in that court, and thereupon an application for a certiorari was made to this court, so that two cases are before us with records precisely alike, one the appeal from the circuit court directly to this court (being case No. 57) and the other the petition for a certiorari to the court of appeals (being case No. 301). [This petition was filed and presented to the court November 30, 1908, and on December 7, 1908, consideration of the petition was postponed to be heard with No. 57.]
The Wabash Company has filed a motion to dismiss No. 57, the case appealed directly to this court. The jurisdiction of the original foreclosure suit was based solely upon diverse citizenship, and it has been repeatedly decided that the jurisdiction in the case of an intervention is determined by that of the main cause. Rouse v. Letcher, 156 U.S. 47, 39 L. ed. 341, 15 Sup. Ct. Rep. 266; Gregory v. Van Ee, 160 U.S. 643, 40 L. ed. 566, 16 Sup. Ct. Rep. 431; Carey v. Houston & T. C. R. Co. 161 U.S. 115, 40 L. ed. 638, 16 Sup. Ct. Rep. 537; Rouse v. Hornsby, 161 U.S. 588, 40 L. ed. 817, 16 Sup. Ct. Rep. 610; Pope v. Louisville, N. A. & C. R. Co. 173 U.S. 573, 43 L. ed. 814, 19 Sup. Ct. Rep. 500.
If this be true in respect to an intervention, a fortiori must it be true in respect to a petition to enforce rights granted by the decree in the intervention. Nor is this rule changed by the fact that when this case went back from the circuit court of appeals to the circuit court, the latter court authorized an amendment to the petition, alleging that the decree ordered by the court of appeals failed to give full faith and credit to the original decree in the intervention proceedings, for, as said in Pope v. Louisville, N. A. & C. R. Co. supra (p. 578):
'And this is true although another ground of jurisdiction might be developed in the course of the proceedings, as it must appear at the outset that the suit is one of that character of which the circuit court could properly take cognizance at the time its jurisdiction is invoked. Colorado Cent. Consol. Min. Co. v. Turck, 150 U.S. 138, 37 L. ed. 1030, 14 Sup. Ct. Rep. 35; Ex parte Jones, 164 U.S. 691, 693, 41 L. ed. 601, 602, 17 Sup. Ct. Rep. 222; Third Street & Suburban R. Co. v. Lewis, 173 U.S. 457, 43 L. ed. 766, 19 Sup. Ct. Rep. 451.'