COWLEY 11. NORTHEItNPAC. R. CO.
325
exciuding it from the use of the street to which it was entitled under its franchise. as well as under said contract. The City Park Transit Company doel:l not appear, by any admitted allegations of the bill, to have ever approved of the manner in which the track was constructed, or to have accepted it as being ·built in performance of the contract, and it is not bound, by the law of estoppel, to accept as performance of the contract a structure which does not answer its requirements, but which is in fact a violation of the contract. The laws of this state make ample provision for preventing and punishing breaches of the peace, the unlawful use of force, and the malicious destruction of property, and afford ample remedies for all injuries inflicted by such wrongful conduct, and equity will leave a party, in the situation of this complainant, to obtain such relief or' redress as the laws of the land may afford. In granting a temporary injunction, this court deprecated the use of force, and held that it was the duty of the court, pending the adjustment of the rights of the parties by the final decree, after a full hearing of the cause upon its merits, to use its power by issuing an injunction to prevent the destruction of the property involved in the controversy; and there is no intention on the part of the court to swerve from the princi. pIes upon which that decision was founded, but the case is now presented for final determination, after the parties have had ample time to make 8 full presentation of the cause upon its merits, and upon this hearing, as the want of equity on the part of the plaintiff has been made apparent. no part of the relief pmyed for in the bill can be granted. Neither can any affirmative. relief be afforded to the defendants. The decree will therefore be entered dismissing the suit, at the plaintiff's costs.
COWLEY '11. NORTHERN PAC.
R. Co.
(Olreuit Oourt, D. Washingum., E. D. April 15,1891.) EQUITT-ADEQUATJI REMEDY AT LAW-VACATION OP JUDGMENT.
Where, in a suit in the territorial district court of Washington, judgment Is ren· dered upon a stipulation of counsel made in contravention of defendant's instructions to his attorney"he has a proper and adequate remedy by a motion to vacate under the Code, and equity will not take jurisdiction of a bill to annul and enjoin the execution of the judgment filed before the Wile within which a motion to VI*cate could have been made had expired.
In Equity. Bill for injunction. George Turner, for plaintiff. J. H. Mitchell, Jr., for defendant HANFORD, J. This case was commenced in the district court or the territory of Washington for the fourth judicial district, and, according to the practice in such cases under a statute of the territory, it was tried before a reieree, who reported to that court the evidence introduced by.
326
... ;FEDEEAL REPORTER,
vol. 46.
the partieEi, and alsobis findings of fact and,conclusions of law. Objp.ctions to the report of .the referee were filed, but before a hearing could be hadt1:)ereon the adlpission of the state into the Union, and the consequent reorganizatipn·of the courts, intervElned, and .the case has been in uue courSe transferred .tothis court, The .plaintiff has nloyed against the report,to set aside.;thefindings of fact as a whole, and also to set aside the conclusions oOaw. The objections to. the findings of fact in the.irentitety will bedenied for the reason that a general, objection is not good. ;;Itis neoer;sary fQr a party cOUlplainiqg of error tq specify the erroi'. ,The plaintiff also moves to set aside the findings contained in the 7th, 8th, 'l1th,;19th, paragraphs of the findings of fact as not being'supported by stlfficient evideuce, and as embodying legal conclusions, .rather than conclusions of fact. I de11Y the motion as to the 7th, 8th, 11th, and20trh, and sustain it.as to the 19t1::l and 21st. The 19th is no finding with .relation . to a power of attorney executed by the plaintiffs to Mr. Albert Hagan.. I think the whole of the controversy relating to the power of attorney is irrelevant in this case. The power of attorney was not .pleade.d in the defendant'sa-nswer as a matter on which the defendant relied, and the testimony in. the case shows that in all the proceerlingsand traueactions betw.een the parties affecting the material issues in this power of f!,ttorney was ignored,-was not acted upon. There was no attempt to compromise the controversy between. the parties through the medium of the attorney in fact by virtue of that power, and I think that the claim now asserted by the de-. fendant in relation to. the power of attorney is an after-thought. The twenty-first paragraph is unnecessary, in so far as it relates to mere facts i and in so far as it is a conclusion of law it is improper, if not erroneous; so that will be stricken out. The defendant has also filed exceptions to certain findings of fact that are specified, which exceptions are all overruled by the court; and the court now adopts the findings reported by the referee, excepting the nineteenth and twenty-first paragraphs, as the basis of this decision. They are as follows: .. First. That the Northern Pacific Railroad Company, [the defendant in this case,] on the 29th day of Junp, 1886, commenced an action in the district court, fourth judicial district, Washington Territory, sitting in and for Spokane county, against H. T. Cowley, plaintiff in this case, to recover possession of certain lands in the complaint in that case describl'd. "Second. That said H. 'r. Cowley, [plaintiff in this case,] for answer to the complaint in the above-described suit, filed his answer, claiming eqnitable relief thereby, to-wit, specific performance of a contract to convey to him the land described in the complaint. .. Third. That on or about the - - day of April, 1887, the firm of Ganahl & Haj1;an, a law firm composed of Frank Ganahl and A. Hagan, were employed by COWley to represent him in his defense in the case of N. P. R. R. Co. vs. Cowley, under a contract Whereby they were to receive one-fourth of all money prland recovered by COWley. .. Fourth. That at the November, 1887, term of the district court Emma Thomson' was appointed referee to take evidence in the case. and as such referee caused the parties to appear before her at her oUice in the city of Spokane Falls -on· the 10th day of May, 1888, to take said testimony. The N. P.
COWLEY v.
PAC. R.CO.
327
R. R. Co. appertrM by 'itsattorn:ey, J, n.Mitcbell,u.Jr., and the defendant. Cowley, by Ganahl & Hagan, his att.orneys. Upon agreement of parties, taking of testimony was postponed until May 11th. the same b!;'ing the next day. "Fifth. That upon the said 10th day of May, 1888, Prlu} SchiIlze, general land agent of the N. P. R H.eo., and its dUly-anthorized agent. upon behalf of the company. made a proposition of settlement to Ganaht & Hagan, attorneys for Cowley, of the differences the land in dispute in case of N. P. R. R. 00. vs. Cowley, the propusition beirig this: The l'aill'oad company would gi ve Cowley $8.000 cash. and con vey to him a tract of land upon which Cowley's improvements were. and comprising about se\'en and orie-half acres; the company to l'f'tain the balance of the land. "Sixth. That Gunahl & Hagan thereupon informed Cowley of the proposition, and what it was, and advised him to accept it. as there was an f'stoppel in his case that wOlild prevent him from recovering the land, in their juJgment. "Se·venth. That upon the evening of said 10th day of May, 1888, said Schulze, Hagan, and Mitchell went to the residence of Cowley in the city of Spokane Falls, and met there Cowley and Mrs. Cowley. his wife. The proposition above referred to was discussed by them, and an oral agreement of settll'mellt, settling their differences, was entered into, which agreemf'nt was in substance as follows, to-wit: The R. H. Co. was to give Cowley $8,000 and a tract of land upon which Cowley'S improvements were, embracing about Sf'ven and one-haif aCl.'e3. The R. R. Co. was to retain the balance of the lallc!. Schulze further agreed to give Mrs. Cuwley. or any person she might designate, two lots of land for church purposes; these two lots were to be gi ven by Schulze personally. The R. H. Co. was tei pay all costs that had been incurred in the case. The respective attorneys in the case were to pff'pare all necessary papf'rs for settlement. but nothing was said as to the kind and character of papers nf'cessary. ThE' $8,000 and papers were to be sent to J. N. Glover. president of the First National Bank, Spokane Falls, W. '1'., who should deliver the same to Cowley or his attorneys; and it was calculated that th!! money and these papers would arrive about the 16th day of May following. Nothing was said as to the manner in which the case of the N. P. R. R. Co. \'S. Oowley should be disposed, further than that a disposition of the same should be made by the attorneys. "Eighth. That on Monday, the 14th day of May, 1888. Schulze secured a. draft for $8.000. payable to the order of J. N. Glover; also had preparf'd a certificate of sale from the N. P. H. H. Co. to Cowlf'y, duly executed by the company. conveying to COWley the seven and one-half acres mentioned in the agrepment of settletnent; also a plat of said land; and also a quitclaim deed from Cowley and wife to the RoIL Co. for alI land claimed by the company in the complaint; placed these all iiI an envelope, and sent the same to J. N. Glover. In said envelope was also it letter of instructions to Glover, directing him to see Cowley and his attorneys, and, upon COWley 'signing anll executing the quitelaim deed. he should turn over and deliver to them the monej', certificate of sale. and plat. All of said documents and money were received by said Glover on tile 10th day of May. "Ninth. On the 15th day of May, Hi88. Cowley went to the office of one of his attorneys. to-wit. Hagan, and informed him that he was dissatisfied with the settlement, and that he desired 10 employ associate counsel to assist them, (Ganahl & Hagan.) to which Hagan objected. except they (Ganahl &, Hagan) should be paid the amount due them for their fees; whereupon negotiations for settlf'ment of fees were entf'red into between them. "l'enth. Thllt on the 15th day of May Cowley also sent a telegram toSchulze to the effect that he mllst have additional time to ,consider proposition of settlement, which was recrived lJy Schulze upon same date. and was auswered by
328
FEDERAL REPORTER,
him to the effect that.there was consider; settlement had been made, papers and money had been sent.. . "Eleventh. That upon receipt of money and papers on the 16th day of May Glover at onQe tookall papers to the office of Ganahl &, Hagan, where he found both members of the firm: also COWley. Glover informed them that he had received all the papers and money. He gave one of the attorneys the papers, and also exhibited to them l1is letter of instructions. He informed them that the money would be paid as soon as Cowley and wife would execute and deliver the quitclaim deed. He was informed that the matter would be attended to that day, and he would be called upon to pay the money. After Glover left, and upon same day, Cowley and wife refusl'd to execute the quitclaim deed, and have so refused ever since said time. The money is now and has ever since said time been in Glover's hands, and ready to be turned over to Cowley upon delivery of quitclaim deed duly executed. "l'welfth. Tllat on the 17th d"y of May Cowley wrote and sent Mitchell and Schulze each a letter to the effect that the proposition of compromise had not been accepted; that Ganahl & Hagan had been discharged as his attorneys, and were not authorized to represent him, and all further comlll llnications should be made through his attorneys, Blake &, lUdpath: which letterd were received by them about the 19th day of May, and upon that day thq each wrote Cowley to the effect that they would recognize no other attorneys in the case without the charges of former counsel were paid, and the names of other attorneys substituted by or'der of the court, "Thirteenth. That on the said 17th day of May Cowley wrote a letter to Ganahl &, Hagan, and had the same delivered to them, to the effect that he discharged them as his attorneys, and had employed other counsel to represent him, Upon same date Ganahl & Hagan wrote and had delivered to a letter to the effect that they demanded $4,000 for their fee, and wOllld consider no less slim. and also that they had on motion set case down for taking testimony to commence on Monday, May 21st. "B'01M'teenth, That upon the 18th day of May the referee. Emma Thomson, issued a citation to Mitchell, as attorney for the R. R Co., and Gan<l1l1 & Hagan, as attorneys for Cowley, to the effect that on the 21st day of May she would proceed to take testimony in the case of the R. B. Co. vs. Cowley. one of which notices is filed herewith, and made a part hereof, and marked' Exhibit - - . ' '.rhereupon, upon the same da)', to-wit, May 18, 1888. said Cowley telegraphed said Mitchell, as such attornpy, that he could not take testimony on Monday, as he had changpd attorneys. On the same day, in answer thereto, salli Mitchell telegraphed said Cowley that he had never arranged for taking testimony on Monday. or any time subsequent to May 10th, when, as he said, counsE'1 gave them to understand no taking of testimony would be necpssary; and saying that Mr. Schulze, his principal witness, relying on Cowley's word si lice broken, had made engagements it impossible for him to go to Spokane Falls in said case for several weeks, and that the case would not go on untIl Schulze could go, and he (Cowley) could depend on that: and he added: · If you have a fight. you shall have it.' Said telegram is filed herewith, and made a part hereof. ant! marked' Exhibit - - . ' "B'ij'teenth. That the 21st day of May, 1888, was the first day of the May. 1888, term of the district court, upnnwhich date a stipulation was entered into by Mitchell, as attorney for the N, P. R. l:to Co., and Ganahl & Hagan, as attorneys for Cowley, to the effect til/It the case of N. P. R. R. Co. vs. Cowley had been settled.and compromised, and upon payment to defendant, H. T. Cowley, or his attorneys for said Cow ley,of the sum of $8.000 and the deli very to him or his of a or deed duly,executed for seven and one-half acres of land at or near defendant CO,wley's house, as agreed uPon·. judgment for plaintiff,then to be enterel1 for, the restitutiollof the premises I\wntioned in
COWLEY V. NORTHERN PAC. R . .cO.
329
tiff's complaint as therein prayed for,.and denying the relief prayed for m de· ft:>ndaut's answer or cross-bill, at plaintiff's costs; which stipulation was filed in court with the papers in the case of R. R. Co. vs. Cowley. "Sixteenth. That Ganahl & Hagan executed and signed a receipt as follows, to-wit: " ·We hereby acknowledge receipt from the Northern Pacific Railroad Company of a certificate of sale in nature of contract to convey to the said H. T. Cowley the land described in the stipulation heretofore made herein as being about seven and one-half acres of land at or near defendant's house, and of the receipt this day from said company of the sum of eight thousand dollars, placed in the First National Bank of Spokane Falls, SUbject to our order for said Cowley as agreed upon, and hereby acknowledge the terms of said stipulation and the settlement therein mentioued to have been fully complied with and full satisfaction made thereof. 'GANAHL &, HAGAN, Attorneys for defendant, H. T. COWley. " 'Dated May 21, 1888.' "Ganahl &, Hagan have never received .the $8,000. That money is the same heretofore mentioned as being in the possession of J. N. Glover, and subject to the order of Ganahl & Hagan, undercertain restrictions mentioned. ".seventeenth. That upon the said 21st day of May, 1888, upon filing the stipulation and receipt above described, judgment was rendered for the plaintiff and against CoWley for possession of all the land except the seven and one-half acres previously described herein, and the relief prayed for by Cowley was denied. "Eighteenth. That COWley did not know that the above-described stipulation had been enterpd into by the attorneys, nol' that the receipt set forth had been given, nor that the judgment had been rendered and entered until all had been done; and upon hearing of the same be at once made known his ob· jections to such stipulation and judgment, and protpsted a!!ainst it, and has so protested ever since said time. This action was instituted to set aside that judgment and decree. ' "Twentieth. That upon the 21st day of May. 1888, Ganahl & Hagan were the duly-authorized and acting attorneys for Cowley in the caSe of N. P. R. R. Co. vs. Cowley, and had full power to act as such." h
Upon this state of facts it becomes a question as to what the rights of the parties are as regards the case which, as claimed by the defendant, was compromised and finally adjudicated in the district court. Theplaintiff is in a court of equity, seeking purely equitable relief, and he does not stand in a very good light. It appears that he is not only seeking to annul the action of the court by which he claims important rights of his have been unjustly cut oli', but the object of this suit is to, reach beyond and cancel an agreement wbich he voluntarily made to· compromise that case. Admitting that he was acting under the adviceof his counsel, and that the advice given upon the questions of law involved was predicated upon an erroneous and unsound opinion, still, as I view the matter, considering the delays and uncertainty of litigation, no good lawyer would probably do less than Mr. Hagan did in advising Mr. Cowley as to the propriety and wisdom of accepting the proposition then made; apd I cannot find that there was any bad faith on the part of the plaintiff's attorneys that would justi(y him in attempting to recede from his agreement made after deliberation and with a full understanding, of the facts. However, there was only aPJJnderstaoding be-
33.0
','FEDERAL REPOR'1'ER,
tween the parti¢s asto,the terms itp0nwhich the cDnlpromise would be concluded. The' tertns' 6'f the com'promise were but the agreement was, not ()f-itself' 9perative cOfilprotri,ise- or authorize the court to rencler 'a' to enforce' any' of its provisions. The agreement, even if it were binding in lawnnd equity upon Mr. Cowley, has never been executed, never has been ('arried into etfect. It has never beenper,ormed on the defendant's part, so 'as' to entitle it to any judglhent in the district court inthe' originalcasej and it is not by virtue of anY,,(;)xecuted agree Il1 (;)nt betweCl'l the parties that'the railroad company claim was properly entered... 'The stipulation that by Ganahl & Hagan as attorneysforJ\lr. Cowley was not only unauthorized, but it was made in defiance of his kmown wishes in the' matter. The judgment rendered on that stipl.llatiOil was therefore improperly rendered, and it was unjust. I have no hesitation in saying that if the judgment were moved in any proper way it should as a mat¥Jr of right be vacated. But is the plaintiff entitled to such relief in this separate suit, in ,equity? This I find to, be the serious and difficult question in the case. It is a fundamental principle of chancery p'l'actice that relief is granted only when necessary to protect a right, or prevent the doing of irreparable mischief; and necessity for such relief ca?pot be claimed unless. the party asking for it is without a remedy at law. The court will be careful to not encroach, upon another jurisdictiun, and it will not in any case revise or attempt to C01T\lct errors in proceedings of other courts. In harmony with these principles, the court must decline to interfere by annulling or enjoining the execution of an Ulijust judgment, if the same result can as well be obtained by a motion or petition in the original case, and only when the which rendered tqe unjust judgment is closed to an applicatia:n, or puwerless to grant relief, can a court of equity in a distinct suit exert its extraordinary power. In this state the statutes contain provisions affording specific and ample relief to all persons having cause of complaint similar to that of this plaintiff. He could, under the statute, upon the showing which he has made in this suit, have successfully u.rged a motion to vacate the judgmentcomplained of. The time allowed by the sta.tute for making such motion did not expire until after this suit was commenced. The rem-' edy' at law was This suit was unneoessary, and therefore the court will refuse to'aid the plaintiff. This rule is better stated in section 362 of Black on Judgmemts, (volume 1:) "!'rhe liberal of, t).{e trials and entertaining motiQris to vacateoi' open their oWn jUdgments, and the'enactment of statutes in' many of the statesi"iotl1oi'iZing thesetting aside of judgments taken against a' defendant· through hismistake,inadvl'rtence. surprise, orexcllsable neglect/have considerably abtldged: the province of equity in giving relief by injunction;, and. rule is: ,generally adhered to. asth\l more safe and conl?eryativ:e principle,thilt/equity. an if the ,equally 'YIW be the executlon or. has'col\tl'i'>l of It.. It IS true that some cases mamtam a dlf. ferent'vte*, bottllng t11at, ii'lthOugh: the judgmentinight be vacated or set aside on ffi<>tion, ;andJa>lth.eu'gh the 'time for so mOVing 'has not yet expired.
COWLEY tI. NORTHERN PAC. R. CO.
331
'Still equity may enjoin the enforcement of the judgment.
But in so holding they dt>pal't from tbeifundamental principlell of equity, and are not to be commended."
I have examined the following authorities, cited by this author, and find that they support the doctrine of the tex.t: Imlay v. Carpentier, 14 Cal. 173; Bibend v. Kreutz, 20 Cal. 109; Logan v. Hillega88, 16 Cal. 201; Hintrager v. Sumbargo, 54 Iowa, 604, 7 N. W. Rep. 92; Simson v. Hart, 14 Johns. 63. In the case reported in 20 Cal. the court, in its opinion, states the reason for the interferenee of equity in cases similar to this one in a quotation from Story's Equity Jurisprudence as follows: "It may be stated that in all cases where by accident, or mistake, or fraud, or otherwise, a party has un unfair advantage in proceedings in a court of law, which must necessarily make that court an instrument of injustice, and it is therefore against conscience that he should use that advantage, a court of equity will interfere,and restrain him from using the advantage which he has thus improperly
And in the same connection the opinion states the general rule as follows: "The assistance of equity cannot be invoked so long as the remedy by motion exists. "
Bl1tone other argument remains to be considered. This suit was commenced the court that rendered the judgment sought to be vacated. The bill-denominated a" complaint" under the practice in the territorial court-contains all the matter reqUired by the statute to be set forth in a motion or petition to vacate a judgment, and it is urged that this independent suit may therefore be regarded as in effect the same thing as a proceeding under the statute to vacate a judgment by an order of ihe court which rendered it. I consider, however, that this suit is not the same as a proceeding under the Code. The rights of the parties and the limitations of their rights in such a statutory proceeding are quite different from the rights and limitations, and the rules which must govern the decision of a suit in equity, It would be contrary to the principles of equity, after a cause has been conducted as this case has, through all the stages of a regular suit to a final hearing, to' now transform it into a summary proceeding under the statute. The plaintiff has, in my opinion, mistaken his remedy, and for that reason his suit must be dismissed, ON REHEARING. (May 19, 1891.)
After carefully considering the arguments and authorities cited on the motion for a rehearing of this cause, I !'ltill feel constrained to adhere to the decision already given, and to rest the decision of the case on the grounds stated in the opinion o:n file. There is something more than a difference of mere form betw{len a suit in equity by an original bill to vacate a judgment or decree at;ld ,a proceeding under the Code,-a difference which is made ,plain by the foUo:wing extracts from the opinion of the supreme court of the United States in the case of ljarfowv. Hunton, 99 {J. S. 82, 83:
832
FEDERAL REPOl!tl'ER,
Yol.'16..
"The question presented with regard, to the jurisdiction of the circuit COtlrt is whether the proceeding to procure a nullity of a former judgment in such a case as the present is or is not in its nature a separate suit, or whether it is a supplementary connected with the original suit as to form an incident to it, and sustantially a continuation of it." "The distinction between the two classes of cases may be somewhat nice, but it maybe affirmed to exist. In the olle class there would be a mere revision o,f errors and irregularities, or of the legality and the correctness of the judg-ments and decrees of the state courts; and in the other class the investigation of a new case arising upon new facts. although having relation to the validity of an actual judgment or decree. or of the party's right to claim any benefit by reason thereof." This court has not acquired jurisdiction of the original case. To effect a transfer thereof from the territorial district court and invest this court with jurisdiction it is essential that a request in writing by one of the parties be filed in the" proper court.)) 2;') U. S. St. 683, § 23. This has not been done, and no part of the record of that case has come into the custody of this court. The parties have not even seen fit to offer either the original record or a copy as evidence on the trial. Therefore, if we are dealing with a statutory proceeding supplementary to thejudgment assailed, and not with a new and distinct suit. the court can do nothing else than dismiss it for want of jurisdiction. 'As to the question whether the right to sue in equity remains, notwithstanding the statutory provisions for proceeding in the original case to obtain the vacation of a decree or judgment improvidently rendered, or obtained by fraud, there is said to be a conflict of authorities, and a number of cases have been cited, including decisions of the supreme court, containing dictct to this effect.·, I think, however, that the rules given inthe authorities which I haVE) heretofore cited are founded in reason and the elementary principles of equity jurisprudence, and the court is not required to disregard them by reason of any authorities to which my attention has been directed. the argument for a rehearing it has been urged, however, that by the removal of the cause into a United States court, in which the modern practice of mingling law and equity in one form of 'proceeding is not p,ermissible, the parties have acquired new rights, and are entitled in this court to, have. a decision according to equity unaffected by 10caUegislation;and the plaintiff claims ,that he is entitled to the sanJe relief, and that the court should proceed in this cause in the same manner, as if it had been originally 'COmn11H1Ced in this court, and had proceeded therein from its inception, a<lcording to the true equity practice; and it is urged that the court cannot now say to this plaintiff that because he could have obtained relief in a different form of proceeding, and in another forunl, this court will not entertain his cause, or grant him the relief to which he is in equity entitled, for to thus hold 'would be'squivalent to saying that a statute of the state has intervened as a bar foobtaining equitable relief in this cOlirt, and to that extent has 'abridged the equity power and jurisdiction of a national court. I think. however, that the rights of,the parties involved in this case were fixed by existing laws prior to the time of the creation of this court, and that
GILMER 11. MORRill.
333
the case should be decided so as to give each party all, but no greater, rights than: he could under the laws existing at the time the suit, was commenced.
GIJ.MER
v.
MORRIS
et ale
(Circuit
Court, M. D . .Alabama. May, 18111) DEMURRER.
,JUDGMENT-RES ADJUDICATA---DISMISSAL
Plaintiff filed bis bill in the state court to redeem certain stock pledged by him with defendant in 1871. On demurrer the court sustained the plea of the statute of limitations, and dismissed the bill. In the present suit for the same stock plaintiff stated the original transaction of 1871, and further set forth a new and different pledge, in 11;75, of the same stock for other debts and for future advances which were made. ReId, that tbe last suit is not barred 'by dismissal of tbe bill in the first suit, since the dismissal was on demurrer for insufficiency of the allegations of the bill, and not on the merits.
In Equity. W. A. Gunter, H. C. Semple, and R. Tompkins & Troy, for ret'pondents.
(J.
Brickdl, for complainant. '
BRUCE, J. The facts appear in the opinion of the court. There was a previous bill between the same parties, which was dismissed by the supreme court of the United States upon a question of jurisdiction, as will be seen in case of Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ot. Rep. 289. A new bill was filed, and we have for consideration the sufficiency of the plea of res adjudicata, which was considered and determined in the former case, reported in 30 Fed. Rep. 476. The bill in this case and the plea are the same as in the former case, ,and the question has been again heard upon argument and brief of counsel on both sides. It is conceded that the original suit in the state court was brought to recover the same shares of stoc,k for which this suit is brought; that it was py the same complainant against the same defendants; and, as the bill was dismissed absolutely and the decree affirmed on appeal, the .defend ants insist that the cause of action set up in the suit was adjudicated between the parties in the suit in the state court, and that the facts set up in the plea constitute abar to the present suit. It will be observed from the recqrd in the state court set up in the plea that. the original bill after amendment, and as it stood when the trial was had, stated a pledge of 120 shares of stock ill for $6,000, the original cost of the same, and that this sum on the 30th of March, 1871, was paid by a sale of one-half of the stock, and the remainder, 60 was left to secure the balance of interestdrie 'to Morris. The bill (Ed not allege acts of recognition on the part of Morrisfroin that time to the filing of the bill in the sUite court, on the.7th day of July, 1884. The answer of the defendants admitted certain facts, but denied, by w/lyof conclusion, the ownership of the stOck by the and coupleliwith the