delivered the opinion of the court!
This is a direct appeal from the District Court under § 238, Jud. Code, upon the sole question of the jurisdiction
The facts are as follows: In December 1908, appellant filed its original bill against Saalfield in the then Circuit Court of the United States for the Northern District of Ohio, for relief against unfair competition in the business of pubfishing and selling dictionaries. Saalfield was duly served with process, appeared, and made defense. The Circuit Court having dismissed the bill, the Circuit Court of Appeals reversed the decree (190 Fed. Rep. 927; 198 Fed. Rep. 369), and remanded the cause with direction for an injunction and an accounting in conformity with its opinion. The District Court made a decree 'in accordance with the mandate September 11, 1912, with an order of reference for the accounting. Thereafter and on December 16, 1912, the supplemental bill was filed, setting up in substance that since the entry of the decree of September 11 complainant had discovered, and it charged the fact to be, that Ogilvie had from the beginning actively conducted, controlled, and directed the defense of the suit, having selected, retained, and paid, as solicitors and counsel for defendant Saalfield, the firm of Weed, Miller and Nason, of Cleveland, Ohio, and Mr. George F. Bean, of Boston, Massachusetts, who, in pursuance of said retainer, appeared on behalf of Saalfield, but acted for and under instructions of Ogilvie; that in fact Ogilvie was the proprietor of the dictionaries involved in the suit, which were published and sold for his benefit and profit by Saalfield under a contract proyiding for the payment of royalties to Ogilvie; that pending the suit Saalfield had
Upon the fifing of the supplemental bill and an affidavit setting forth that Ogilvie was a non-resident of the Northern District.of Ohio, and that as alleged in the supplemental bill the firm of Weed, Miller and Nason, of Cleveland, and George F. Bean, of Boston, Massachusetts, who had appeared respectively as solicitors and counsel for defendant Saalfield in the defense of the suit, were in fact retained and employed by Ogilvie for that purpose and paid by him and acted under his instructions and directions, complainant moved for and obtained an order authorizing substituted service of process against Ogilvie, to be made within the District upon the Cleveland attorneys, and in the District of Massachusetts upon George F. Bean. Service was made accordingly, and the process returned; and it appearing from an affidavit made by defendant, Ogilvie, and filed in the cause on February 22, 1913, that he had had actual notice of the supplemental bill, an interlocutory decree
pro confesso
was entered, and this was followed, on October 16, 1913, by a final decree for the recovery against him of profits amounting with interest to $81,312.78, besides costs. Thereafter Ogilvie, by solicitors appearing specially for the purpose, moved to quash the service of the writ of subpoena issued against him and to set aside all proceedings based thereon. The District Court, having heard testimony, granted the
There is a motion to dismiss, based upon the familiar ground that the “jurisdiction of the court” referred to in § 238, Jud. Code, mea,ns its jurisdiction as a Federal court, and-not its general jurisdiction as a judicial tribunal; the insistence being that the contention of complainant below presented no more than a general question of procedure in equity,: and not one peculiar to the District Court as a Federal court. But the distinction referred to bears upon the nature of the jurisdiction exercised or refused to be exercised after a valid service of process upon the defendant, and does not affect the question whether the court has acquired jurisdiction over the person, which is the one here involved. This question may be reviewed on direct appeal.
Shepard
v.
Adams,
Appellant’s, case upon the merits is rested upon the theory that Ogilvie was privy to the original suit- against Saalfield, and an actual though not an ostensible party thereto, in such a real sense that the final decree therein would be res judicata against him; that the District Court had jurisdiction to entertain the suit as against him notwithstanding he resided outside the district, because by voluntarily coming in and defending for Saalfield he had submitted to the jurisdiction and waived the objection, and because the supplemental bill was a dependent and ancillary proceeding, and therefore properly brought in the district wherein the original proceeding was pending; and, finally, that because of its being an ancillary proceeding, substituted service upon the solicitors representing Ogilvie in the original, proceeding was sufficient to subject him to the jurisdiction for the purposes of the supplemental bill. There is a faint attempt to sustain the jurisdiction on the theory that Ogilvie’s affidavit, filed February 22, 1913, as mentioned in the interlocutory decree pro confesso, amounted to a general appearance, because it was submitted in opposition to a motion for injunction on the supplemental bill, and because it “argued the case upon the merits.” This may be overruled at once. The affidavit shows on its face that it was to be used only as evidence for defendants Saalfield and the Publishing Company, and was not to be construed as an appearance by Ogilvie.
The District Court, while raising some question whether the solicitors and counsel who had appeared for Saalfield at Ogilvie’s expense had not concluded their services in
In so holding, the court applied the doctrine that has. been laid down in a number of cases, that a third party, does not become bound by a decree because of his participation in the defense unless his- conduct in that regard was open and avowed or otherwise known to the opposite party, so that the latter would haye been concluded by an adverse judgment. See Andrews v. National Pipe Works, 76 Fed. Rep. 166, 173; Lane v. Welds, 99 Fed. Rep. 286, 288. We need not consider the soundness of the doctrine, for appellant does not question it, insisting only that it is not applicable here because Ogilvie’s control of the defense made in Saalfield’s name became known to appellant during the progress of the suit, and before final decree; it being contended that the decree of September 11, 1912, was interlocutory and not final.
But it is familiar law that only a final judgment is
res judicata
as between the parties. And it is evident that a decree cannot be
res judicata
as against a third party participating in the defense unless it is so far final as to be
res judicata
against the defendant himself. Hence, if the decree of September 11 was not final as between appellant and Saalfield, it cannot be
res judicata,
as against. Ogilvie; and thus the fundamental ground for proceeding against the latter by supplemental bill with substituted service of process disappears. This sufficiently shows the weakness of appellant’s position, which, upon analysis, is
But, assuming for argument’s sake that the decree was final, and that Ogilvie was fully estopped by it because of having taken charge and exercised control of Saal-field’s defense
1
thróugh solicitors and counsel retained and paid by himself; and assuming that their employment had not been terminated at the time the supplemental bill was filed; the question of the sufficiency of the proceedings taken by way of substituted service to bring Ogilvie within the jurisdiction of the court still remains, and this depends upon whether the supplemental bill is a dependent and ancillary proceeding, jurisdiction of which follows jurisdiction of the original cause and may be exerted upon mere notice to the party without service of original process within the district. It seems to be thought that because Ogilvie was identified in interest with the defendant in the original suit and had and exercised the right to make defense and control the proceedings and appeal from the decree, he may be treated for all purposes as an actual party to the record. But this by no means follows. The doctrine of
res judicata
furnishes a rule for the decision of a subsequent case between the same parties or their privies respecting the same cause of action. Obviously, the rule for decision applies only when the subsequent action has been brought. So far as the supplemental bill seeks to bring in Ogilvie as a new party and obtain relief against him it is not, in any proper sense, dependent upon or ancillary to the original' suit against Saalfield. It is not analogous to a suit for an injunction against the prosecution of a previous suit or the enforcement of a judgment therein. It has not
No case to which we are referred, nor any other that we. have found,
1
goes to the extent of sustaining as an ancillary proceeding a bill interposed for the purpose of obtaining a decree
in personam
against a party upon the ground that he had participated in the defense of a previous action against another party so as to become bound upon the doctrine of
res judicata. Kelley
v.
T. L. Smith Co.
(C. C. A., 7th), 196 Fed. Rep. 466, is referred to. In that case Kelley, a citizen of New York, and McConnell, a citizen of Illinois, had commenced an action in a Wisconsin state court to compel the secretary of the Smith
Final orders affirmed.
Notes
See
Minnesota Co.
v.
St. Paul Co.,