FRAENKL

v.

CERECEDO HERMANOS

Mr. Justice White,

after making the foregoing statement, delivered the opinion of the court.

The assignments of error which require consideration assail the power of the court below to permit, the filing of the bill of review, and also question the validity of its -action in vacating the decree entered in the main cause and dismissing the, bill filed therein.

Respecting the first, the proposition is that the limit of-time within which-a bill of review might be filed had ex-, pire.d when leave was given, and that the court should have required payment of the money judgment, decreed in the. main cause before granting permission to file the.bill of review. These contentions are untenable. True-it is that in analogy to the time allowed by law for an appeal to .this court from a final decree of the District Court of Porto Rico, 'the bill of review'should have been filed in two years from June 8,' 1901, the date when the final decree sought to be reviewed was entered, and the bill of review'was not actually filed until Juné 22, 1903. But the bill was presented for filing on February 2, 1902, and it is plain that the failure of the complain-- . ..ants in the bill of review to actually file the same until June 22, 1903, was occasioned by the action of the court in not sooner passing upon the application for leave, to file. Under such circumstances, we think the time which elapsed between the^ tendering of the bill for filing and tbe permission given to file .-Should not be counted'in applying the two years’ limitation. Ensminger v. Powers, 108 U. S. 292. As respects the granting of permission to file the bill of review, the court was vested with a judicial discretion to permit such filing without a previous payment of the moneys awarded by the decree sought-to.be reviewed,.and there was no abuse of such discretion in .giving leave to. file,- conditioned upon the furnishing of the indemnity bond which was thereafter executed.

As to the .alleged error -in vacating the decree entered in and. dismissing the original-cause. — In the court below the allegation attacking the jurisdiction of the ..court-over the original cause was&s-'follows:

“ That this .court did not .have jurisdiction ,citizens .or subjects of a foreign‘State .or States, wherein the ¡matter sin dispute exceeds, exdlansiwe.d'f.interest or costs, the,-aum-or value idffon.e thousand dolairs."’

Pacific R. Co. v. Ketchum, 101 U. S. 289, 298, Is .cited ¡as au-ithority for the proposhaon. Iii that case, however, not -only •was mo objection made toy the parties in the progress -of the cameito the right of the court to proceed, but the decree when rendered was consented to,, and the ruling was that although “Consent cannot give the courts of the United States jurisdiction, it ,may bind the parties and waive previous errors, if when the court acts jurisdiction has been obtained.” A brief consideration, however, of the circumstances in this case demonstrates that the Ketchum case is not in point. The last appearance of the defendants in the litigation in the main cause was on January 31, 1901, when a stipulation was made in respect to the tíme for pleading to the bill, and, of course, an exertion of jurisdiction by the court was neither invoked by the defendants nor consented to by them after the enactment of the amendatory statute of 1901. Under such circumstances it cannot be held that the defendants were estopped from availing of the objection of want of jurisdiction.

The additional contention is made that the ease Presented by the bill in the main cause was one arising under the laws of the United States, and that because thereof' jurisdiction existed, irrespective of the want.of citizenship of the parties. The argument is that the complainants, in their bill, made reference to the provisions of an order of the military governor of Porto'Rico concerning “suspension of payments,” which, ' if given -proper effect, Would have prevented 'the-accomplishment of the fraud which it was-the object of the bill to prevent. This order thus referred to, it is said, was, in legal effect, a law of the United States, and the reference to and reliance upon, its provisions was v an invoking of the jurisdiction of the court on the,Federal ground that the case was one arising undfer the laws ofthe-.United States.' In our opinion, however, there, is not even color for the proposition that the bill presented a controversy arising under a -law of the United States, even if the military order referred to be. treated as a law of the United States. To sustain such a contention it must appear that' a controversy of that nature was called to the attention of the lower court in such a way as to invoke its action thereon. In other words, after a case has been decided below parties may not, for the purpose of a review by this court, attempt to inject a Federal question into the cause by suggesting that it would have been possible by a latitudinarian construction of the pleadings to 'suggest that a right under the Constitution or a law of the United States was'relied upon. And of course in saying this we must not be understood as intimating that the assumed Federal question,, even if it had been called to the attention of the court below, would have had sufficient substantiality to have been the basis for jurisdiction. '

Affirmed.