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
334:
FEDERAL RlilPotfTEB,
vol. 46.
thereof;under'the state practice, five different grounds of demurrer, viz.: (1)' Thei facts 'alleged show that the demand is stale; (2) that itisbarred br the statute of limitations; (3) the claimant has an adequate remedy at lawj (4) the bill as amended makes an entirely different case from that made by the original billj (5) there is no tender alleged in the bill of the amount admitted to be due, and said amount is not brought into court. Testimony was taken, and the case was submitted upon the pleadings and evidence without a previous ruling upon the demurrers, and the chancellor, in .vacation, rendered a decree dismissing the bill absolutely, which decree was on appeal affirmed by the supreme court of the state. 80 Ala. 78. The present bill states the original transaction of 1871 by way of inducement, and goes on to state a new and different pledge in 1875 of the same stock for other debts and forfuture advaJlces which were from time to. time made; and the question iSi can the res adJudiCata in the state courLbe held.to apply to the case now made by the biB in this court? ' 'c;' If a new pledge of the same stock was made in 1875, and if by that it (the stock) was to be held as security for advances to be made, and which were alterwards made, then what is there in (he reQord of the suit in the state court that operates as a bar to this suit ? The opinion of the chancellor in the state court in the former suit shows that he rested his decision on the statute of limitations. His langnage is: "The statute of limitations is therefore a bar to the rights of the complainant in this cause." That was a point in the demurrer,and clearly the point decided was that the case made by the bill was barred by the statute of limitations. The issue was not whether there were acknowledgments took the case out oithe operation of the statute, or whether anything of that sort was proved or not, but only this: whether a case without such ment was made by the hill jalld the question of a new and different pledge in 1875 waS not before the cou,tt by any averment in the bill, and the judgment of the court was not illVoked upon the case as it is now 'made in this court. The sustaining of the demurrer to the bill in the state court put the complainant out of court, and the suggestion of the counsel for the defendants is that hecould have sought lea,ie to amend his hill;' and. state the matter which he now claims took the case out of the operation of the statute of limitations.·· Conceding now that he might have done so,. yet was he obliged to d,o so, and did he not have the option to confess the demurrer, and state new matter by way of amendment, or bring a new and state neW matter which would avoid the demurrer? 'J he allowance of amendments in pleading was certainly not intended to ,revent a party fromfi1in{a new suit, if he deems that the better course. Shields v. Barrow, 17 How. 144; Marsh v. Mdsterton, 101 N.Y, 406, 5N.''E, Rep. 59. The very idea of amendment has ·gdtthat or other and new matter, aud the estoppel of the' jUdgment of il,court can operate only upon the case made· and prese'rited for the judgtrieht of the court. If a party fails to state aease h{ his bWo( 6brripla(n:t, and goes ·outofcourt ondemurrer, the rUle of Tesdq;udiCdta o'perates' as to 'die I 'case made by his bill, and
GlUiER V. MORRIS.
335
only .as to that case. Gould v. Railroad C/)., 91 U. S. 533; Bigelow I Estop. pp. 152-'-155. The question, then,· is a defendant who ha's been defeatea on demurrer, because he has not made a case by the allegations in his bill, can bring a new suit to recover the same prope'rty from the same party, upon supplying the defects in his first bill. The statement of the proposition would seem to carry its own answer, for how can the merits of a different cause, as set up in a bill in a second suit, be heard and decided on a different bill in a formel;' suit, even when it is between the same parties and for the'same property, or how, in such case, can the estoppel of a judgment in a former case operate as an estoppel in' the second case? 'The judgment rendered in a cause must be held to the issues made by the pleadings, and the estoppel will operate only as to the issue, and whatever was necessarily involved in that issue. Presumption will never be indulged in favor of an estoppel beyond what is necessary to sustain the judgment rendered. Russell v. Place, 94 U. S. 606; Bigelow, Estop. pp. 152-155; Barnes v. Railroad Co., 122 U. S. 14, 7 Sup. Ct. Rep. 1043; Black, Judgm. § 242. In Aw'ora City V. West,7 Wall. 82, it is said: The essential conditions und,er which the exceptioll of res adjudicata become. applicable are "the identity of the thing demanded, the identity of the cause of the demand, and of the parties in the character in which they are litigants." Can it be maintained that the cause of the demand in the case in this court is the identical cause of demand in the state court in the former suit? The theory of the bill in the state court seems to be a claim to the property upon an acknowledged pledge and trust relation subsisting between the parties in 1871. The theory of the bill in this case is that of another pledge at a subsequent time, and with different conditions, not only for indebtedness then existing, but to exist,-that is, a continuing pledge, which in its nature was inconsistent with the runningof the statute of limitations; and that in fact there was no act of repudiation of the pledge on the part of Morris prior to June, 1884. It is claimed, however, that the question is not simply what point was decided in the former suit, but what was necessarily involved in the issue in the former suit, and that, as the right to the stock in question was in issue, the matter now sought to be litigated is res adjudicata in the former suit. 'rrue, the same property is claimed here that was claimed in the former suit, but on a different ground, as we have seen; and as the judgment in the former suit was on demurrer to the bill and did not necesthe question of property except as there stated, and as an sarily estoppel must be certain to every intent, and cannot be extended, in the case of judgments, by implication, bevond matters essential to uphold them', 'the former judgment in this case cannot he held to conclude the ,right of.property to the stock in question, which is involved alike in hoth 'cases. Bigelow, Estop. pp. 80,81, 152, 154; Moss v. Anglo-Egyptian, etc:, Co.,L. R. 1Ch.113-116. . . .. . The questions in this case have already been considered, and although upOI{areargument some views hliveBeenpresehted and some authorities to what was preserifedin the former case,yetthe con-
886
1'EDER.u.
REPORTER I
46.
elusions reached do not 'differ from those expressed in former opinion, reported, 30 Fed. Rep. 476, and it is not deemed necessary to go over the same ground again. .
BELMONT NAIL Co. ". COWMBIA IRON & (Circuit Court, W. D. 1. CREDITORS' BILL-JOINDER OF COMPLAINANTS.
STEEL
Co.
May 7, 1891.)
Where a creditor files a bill for himself and such other creditors as may join as complainants, any other creditor of the defendant should be permitted, on petition, to join in the suit as co-complainant. 0
2.
SAME-EQUITY PRACTICE-DISMISSAL.
After a receiver has been appointed in such suit, and other creditors have Joined as co-complainants, the original oomplainant cannot dismiss the suit without their consent.
8.
SAME-JURISDICTION OF FEDERAL COURT.
The fact that such co-complainants were citizens of the same state as the defendant will not deprive the circuit courts of jurisdiction where the defendant and the original complainant are citizens of different states.
In Equity. Motion to dismiss bill. P. C. Knox, for complainant, and the motion. A. M. Imbrie, for Huckenstein. Geo. Shiras, Jr., for Totten & Hogg Iron & Steei FOUIidry Company, opposed. Before ACHESON, C. J., and REED, J. 0
. REED, J. The receiver was appointed April 9, 1891, upon the motion of the plaintiff, who ha<l filed the bill for itself and such others of the creditors of the defendant company who might join, as plaintiffs. The second prayer of the bill is that the property of the defendant be decreed to be a trust fund for the benefit of all its creditors; that an account be of all the debts of the defendant aiHl the assets oT the corporation; that the assets be applied i1) payment of the indebtedness of the defendant in proportion to the wholethereof; that the defendant be from diwosing of its assets; that a receiver may be appointed to take the trust}und, and distribute it among the several creditors who in and prove their 'claims under the decree to be obtained, shall , with power to ,hold, operate, and sell the said property of the defendant unqer the decree of the court.. On Apri114, 1891, John Huckenstein, claiming to be a creditor of the defendant, presented his petition, praying to be permitted to become a party to the proceedings, and joined as a plaintiff. To this petition an answer was filed by the defendant, in . which he is admitted. to bea creditor,but not to the amount claimed . by him. Pending a decision on his petition, the plaintiff, on May 1, 1891, madea moUon for leave to dismiss his bill, to which defendant's , counsel consents, but which is opposed by Mr. Huckenstein. Subse.quent to that motion, but prior to its argument, the Totten & Hogg Iron o