Winstead

[1] The bill in this case was dismissed on the ground that the evidence disclosed that the cause had been collusively brought in this court by the plaintiff (Phœnix-Buttes G. M. Co. v. Winstead, 226 Fed. 855 ), and the question now presented is whether in such an instance the court may competently allow a defendant his costs. The theory of the plaintiff, in support of its objection to. the award of costs, is that the cause was dismissed for want of jurisdiction, and that in such a case the court’s power extends only to a dismissal of the action, with no more right to adjudge costs than to pass upon the substantive questions presented by the bill. The contention is based on the authority of Citizens’ Bank v. Cannon, 164 U. S. 319 , 17 Sup. Ct. 89, 41 L. Ed. 451 , as the leading case, and others of like character, which hold, in general terms, that where thé action is dismissed for want of jurisdiction the court lacks power to award costs. That case and those referred to by- the court as the foundation of the doctrine each presented an instance in which the want of jurisdiction appeared upon the face of the pleadings or record. Thus in Inglee v. Coolidge, 2 Wheat. 363 , 4 L. Ed. 261…