
    
      G. W. AHOY v. M. F. SCOTT.
    Appeal from Circuit Judge, Third Circuit.
    Submitted January 5, 1900.
    Decided May 2, 1900.
    Brear and "Whiting, JJ., and Circuit Judge Stanley in place oe Judd, O.J., absent.
    Attorney’s fees under Civ. Laws, Sec. 1491, are not allowed upon the quashing of the summons or service.
   OPINION OF THE COURT BY

FREAR, J.

The plaintiff brought assumpsit for $46.65 in the District Court of South Kona. The defendant filed what he called a plea in abatement but which must be considered as in the nature of a motion to set aside or quash the summons or service or both, on the ground that service was made before summons was issued, as appeared on the face of the record, the summons being dated December 8, 1898, and the return, December 6, 1898. The District Magistrate sustained the plea or motion and, as he expressed it, threw the action out of court, but declined to allow defendant’s attorney’s fees. Defendant appealed to the Circuit Judge on the question of attorney’s fees only, and the Circuit Judge allowed them. Plaintiff now appeals to this court.

Apparently a mistake was made in entering one of the dates in question and, if so, the magistrate should have allowed it to be corrected by way of amendment. But the only question before us is whether he should have allowed attorney’s fees, assuming that he properly quashed the summons or service. He apparently acted on the theory that no action had been commenced, either because the summons that was issued was not served or because what was served was not a summons. The fees in question are not those for attendance, &c., (allowed in the Circuit and Supreme courts,) but commissions upon the amount sued for. These are assessed (Civ. L. Sec. 1491) “in all actions of assumpsit * * * on the amount of the judgment obtained by the plaintiff and upon the amount sued for, if the defendant obtain judgment.” In the present case it was assumed that, strictly speaking, there was no action. In our opinion, the defendant did not obtain judgment in. the action within the meaning of the statute. Judgment was not rendered in the action. Summons or service was quashed on motion.

J. W. Gathcart for plaintiff.

L. Andrews for defendant.

"We do not mean that the foregoing shall be taken as an expression of opinion upon the general question whether costs may be awarded in a case of which the court is without jurisdiction. Many courts hold that if there is no jurisdiction there can be no judgment whatever, even for costs. This has been called the logical view. Many other courts hold that the defendant should not be made to suffer by being forced into a court which is without jurisdiction and that the plaintiff should be held estopped to deny jurisdiction so far as costs are concerned. This has been called the just and reasonable view. Yet in Maine, where the latter view prevails, costs are not allowed where the writ is quashed. Tibbetts v. Shaw, 19 Me. 204. And, on the other hand, in the Supreme Court of the United States, in which the former view is held, the costs of the motion to quash or dismiss may be allowed, for the court has jurisdiction of that, though not of the action itself. Bradstreet v. Higgins, 112 U. S. 262.

The decision of the Circuit Judge is reversed.  