48 F. 186 | U.S. Circuit Court for the Southern District of Georgia | 1891
The plaintiff filed his bill against the respondent on the 8d of July, 1889. The prayers are for accounting, discovery, and other
This proceeding appears to have been adopted to accord with the practice of the state courts as defined by section 4181 of the Code of Georgia, the language of that rule being as follows :
“A cross-bill need not be filed in this state. The defendant in every ease may set up any matter in his answer which under the English practice should be the subject of a cross-bill, and may require therein any discovery from the complainant he may desire. ”
The respondent has excepted to that part of the answer which purports to bo a cross-bill against the complainant, “ upon the ground that such mailer constitutes no answer to said bill, or to any part 1 hereof, and, if appropriate subject-matter of a cross-bill, the same should be propounded separately from said answer in and by suitable allegations and prayers, according to the rales and practice in equity.” The exceptions w?ero set down for argument, and tlie argument had, and, having taken time to consider the same, the court has concluded that the exceptions must be sustained, and all portions of defendant’s answer by which the aflirinafive action of the court in her behalf is sought must lie stricken.
In Ford v. Douglas, 5 How. 166, 167, where an answer in the nature of a cross-bill bad been filed, Mr. Justice Neusok, in rendering the decision, observed:
“It is said that in some of the western states an answer like the one in question would be regarded in the nature of the cross-bill, upon which to found proceedings for the purpose of setting aside the fraudulent conveyance. But the practice in this court is otherwise, and more in conformity witli the established course of equity. We are of the opinion, therefore, that tire appellant mistook his rights in attempting to raise the question of fraud in the probate sales in Ids answer to the injunction bill, and that instead thereof he should have filed a cross-bill, and have thus instituted a direct proceeding for the purpose of setting aside the sales.”
See, also, 2 Daniell’s Ch. Tr. 1647.
This is unquestionably the rule of the English high court of chancery, and equity rale 90 of this court provides:
“In all cases where, the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regulated by the present practice of the high court of chancery in England, so far as the same can reasonably be applied consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rule, but as furnishing just analogies to regulate the practice.”
The state statute upon this subject docs not help the answer.
In Noonan v. Lee, 2 Black, 499-509, it is held that-—
“The equity jurisdiction of the courts of the United States is derived from the constitution and laws of the United States. Their powers and rules of decision are the same m all the states. Their L raetice is regulated by them*188 selves, and by the rules established by the supreme court. This court is invested by law with authority to make such rules. In all these respects they are unaffected by state legislation.” Neves v. Scott, 13 How. 270; Boyle v. Turner, 6 Pet. 658; Robinson v. Campbell, 3 Wheat. 223.
It follows, therefore, that to obtain the benefit of her averments, and of the prayers set out in the answer seeking affirmative action against the plaintiff, the respondent should have filed a cross-bill in accordance with the rule. Railroad Co. v. Bradleys, 10 Wall. 299.
Let order be taken in accordance with this holding.
