O'Connor v. O'Connor

146 F. 994 | U.S. Circuit Court for the District of Western Texas | 1906

MAXEY, District Judge

(after stating the facts). 1. Without intimating an opinion touching the sufficiency of the present bill, it may be stated that a bill in equity is the appropriate remedy in cases of this character. See opinion of the Circuit Court of Appeals in this case, not yet reported.

¾. The defendants in the present bill were either parties to the original suit at law, or are in privity with them, and the primary purpose of the present bill is to set aside the judgment of dismissal entered in the suit at law; Hence the bill is' not an -original -suit, but merely ancillary and supplementary to the suit at law. Thus, in Freeman v. Howe, 24 How. 460, 16 L. Ed. 749, it was said by Mr. Justice Nelson, speaking for the court:

“The principle is that a bill filed on the equity side of the court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice, or an inequitable advantage under mesne or final process, is not an original suit, but ancillary and dependent, supplementary merely to the original suit, out of which it had arisen, and is maintained without reference to the citizenship or residence of the parties.” Dunlap v. Stetson, 4 Mason 349, Fed. Cas. No. 4,164, by Justice Storey; Cortes Co. v. Thannhauser (C. C.) 9 Fed. 226, by Judge Blatchford; 1 Bates Fed. Eq. Proc. § 46; Krippendorf v. Hyde, 110 U. S. 280, 281, 282, 4 Sup. Ct. 27, 28 L. Ed. 145; Jones v. Andrews, 10 Wall. 327, 19 L. Ed. 935; Dunn v. Clarke, 8 Pet. 1, 8 L. Ed. 845; Clarke v. Mathewson, 12 Pet. 172, 9 L. Ed. 1041; Webb v. Barnwall, 116 U. S. 193, 6 Sup. Ct. 350, 29 L. Ed. 595; Minnesota Co. v. St. Paul Co., 2 Wall. 633, 17 L. Ed. 886; Carey v. Railway Co., 161 U. S. 115, 16 Sup. Ct. 537, 40 L. Ed. 638.

3. In suits of the character mentioned in paragraph 3, the court having jurisdiction, service may be made upon parties, defendant, to the ancillary bill, although they reside beyond the limits of the district. Freeman v. Howe, supra; Dunlap v. Stetson, supra; Cortes Co. v. Thannhauser, supra, and the foregoing authorities. The case of Pacific Railroad v. Mo. Pac. Ry. Co. (C. C.) 3 Fed. 773, 1 McCrary, 647, relied upon by the defendants, is distinguishable from the present one. In that case some of the nonresident defendants were not parties to the original suit, and there seems to have been no privity between them and the original defendants. As to the nonresidents, therefore, the suit was original, and they could not be brought in. Here, as it has already been shown, the suit at law was between the parties to the present bill, or those standing in privity with them. This distinction should be borne in mind in considering the following language employed by Mr. Justice Blatchford, in Railroad Co. v. Railway Co., 111 U. S. 522, 4 Sup. Ct. 583, 28 L. Ed. 498, and repeated by the Chief Justice in Carey v. Railway Co., 161 U. S. 131, 16 Sup. Ct. 543, 40 L. Ed. 638:

“On the question of jurisdiction the suit may be regarded as ancillary to the Ketelram suit, so that the relief asked may be granted by the court which made the decree in that suit, without regard to the citizenship of the present parties, though partaking so far of the nature of an original suit as to be subject to the rules in regard to the service of process which are laid down by Mr. Justice Miller in Pacific Railroad v. Missouri Pacific Railway Co., (C. C.) 3 Fed. 722, 1 McCrary, 647.”

Besides Mr. Justice Blatchford decided the case of Thannhauser, supra, and he scarcely intended, by the language used in Railroad Co. v. Railway Co., 111 U. S. 522, 4 Sup. Ct. 583, 28 L. Ed. 498, to overrule not only what he had said in Thannhauser’s case, but also to set at naught the rulings in Dunlap v. Stetson, supra, and Freeman v. Howe, supra.

4. The present bill, though an original bill in the chancery señse of the word, is a continuation of the former suit, on the question of the jurisdiction of the court. Carey v. Railway Co., 161 U. S. 131, 16 Sup. Ct. 537, 40 L. Ed. 638; R. R. Co. v. Railway Co. 111 U. S. 522, 4 Sup. Ct. 583, 28 L. Ed. 498; Minnesota Co. v. St. Paul Co., 2 Wall. p. 633, 17 L. Ed. 886.

That being true, did the seventh section of the act, creating the Southern district of Texas, transfer the suit, and all jurisdiction over it, to the southern district? See Stillman v. Hart, 126 Fed. 359, 61 C. C. A. 309. The question suggested is involved in doubt, but, in view of the fact that evidence was taken in the original suit at law, the court inclines to the view that the suit should be retained here.

An order will be entered overruling the motion to discharge the service and vacate the process.