CASES ARGUED AND DETERMINED IX '1'IDI
UNITED STATES CIRCUIT COURTS'OF APPEALS AND THE CIRCUIT AND DISTRICf COURTS.
No. 18.
L
Ibl· .JlroIOATA-INZUNCTION-Al'PBAL.
B,otb,m,embersof a dead, tlle widow ot the partner who Arlit clied had set off to her a dower Interest, in the partnership lands, and afterwards lued the heir at law of, the other partner to, recover back rente on her dower In,Tbe heir at law thereupon brought a bill to enjoin this suit and tor an ac· counting of, the partnership affairs, which bill was dismissed on demurrer. h,eir', at, la,,w appealed to t,he supreme court, notwithstan,ding, which the widow P,rollo' rents to a final decree"and the same was paid by the heir at law without compulsory' process. Thereafter the supreme court reversed the decree apPllaled from, boldlng that tbe widow was not ,entitled to the rents; and rethe case for further proceedings. ,Held, that neitber the decree in the 'suit for rents nor the fact of its voluntary payment was a bar to the helr at law's right under her bill to an aeoounting ot the rents paid. NQr was ber right afl'eeted by tbe fact tbat, before sulitaining the demurrers and diSInissing,the bill for injunction snd accounting, tbe trial court offered to retain tile same fO" the purpose of an &CC()1lnting, which offer was declined by tb,e heir at law. A bill, tol reView a decree rendered in the heir at law'. wit, which, among other the restoration of tbe rents collected in the widow's suit, was with· out eqUIty, since tbe debts of the llartnership were entitled to precedence over the widow'S dower right in the partnership property, and since, therefore, the widow had obtained, as a result of the prior proceedings, a sum of money which in equity and gClod Clonscienceshe was not entitled to retain. " '
,
,"
BAME.,
BILL OpRBVIIlW-WAN'l' OJ' EQUITY.
4.
BAMB-eITAorION ON ApPEAL-SERVICB.
An allegation in the bill of review tbat the widow was not a party to the appeal to the supreme court, because no citation was ever served upon her or any or attorney of hers. was immaterial, it appearing from the record that this fact was not alleged in tbe pleadings filed by her in the main case after the cause was remanded,and that the citation was in fact served npon her attorney of record in that case,' ,
AppeaIfrom the Circuit Court of the United States for the Wester.. Divisionotithe Northern District of Mississippi. v.52F.no.l-1
2
FEDERAL REPORTER,
vol. 52.
In Equity. Bill of review brought by Lucy 0,. Freeman and C. L. Freeman, her husband, citizens of the state of Missouri, against Pattie A. Clay and Brutus J. Clay, her husband, for alleged errors appearing on the face of a decree under an original bill brought against them by 'defehdantS for injunction and an accounting. A demurrer to the bill of review was sustained, and the bill dismissed. 91;1, :.!W order was made dismissing the appeal, unless a perfected appeal bond should be filed before a given day. See 48 1 C. C. A. 115. The question is now on the merits. Affirmed. d-edM
':rVPf
'be
34 Fed.
at" .\ LJ
The appeal in this case is from a decree in the court below sustaining a demurrer to a bill of review·. In...1859, ..David 1. Field and Christopher I. Field were partners in planting, and owned a plantation in Bolivar county, Miss., as tenants in commou, and also slaves and other personal property. DavW 1'. Field diecl:.i1l' tbatYEIflr, leaving appellant Lucy C. Freeman, his widow, and David 1. Field, his only child and heir at Fieldrthe· 8urviving'iparto.efj,;r,emained in the possession ofall the until his death, in the year 1867, when his administrator cotrtinued the possession. In 1869 the h.,!l:,ll Ir \Vas cOQn; due by thepartnershlp to Qhrylltopbet l" Field's.estatetand M1'8.Pattie A., tbe.daughterand hell' '.Uawof' .. . Said decree .nd. We; werevGid thereby, but Mrs.:1!attie 'A. Clay deed' ,; Mrs. inithestatecourt, hild, ber dower of of per Qavid I. Fleld, In the'S81dplarttatiut1set off to her, and InSep.temoor, 1880, she of against forback.te,ntspn her dower, In'danae wB:s' to the United States circuit court for the western division of the northern distdct o.f Miasissippi. ,In J,I:.; brnught ane}ectment suit in the n.ited ,States · Qotwt diVis.ion of, flte .northern'district of law",(Jf David I. Field, deceased, to recover his half interest also the were, pending Mrs. Pattie A., Clayi!lnd Brutus'J. C1ay) equity, said court to .enJoinbothproceedings"tQ: the; said with a .large debt I ·. Field, and for an accounting with Mrs. L'ucy C. Freillrian, 'widow of David 1. Field, and her son David 1. Field, Jr., touching the partnership affairs. To this Mrs. Freeman and David I. li'ield,Jr. After hearing upon theQElD1urrers, the court rendel!ed addecree;partl,
eray,
passed'
lltle,
8
8tlst&iriih!t'iuid 'P«rtlyoverruling the same, and 'ordering a reference: to an account ootween the parties; but on the 6th oCMarch, 1884, the followi1lig decree was rendered in the ,caeie: "Bait this day carrie on to be heard the above-entitled eRusEliand the parties appearing in by consent, tbe account herein fiIedby:tbe,maater ,1s withdrawn, and,the decree of ,reference lJereinbe:(ore rendered is set aside; and counsel for cOll)plainantsdeclining ,to avail of the offer of the court to retain the bill for the purpose of stating an acconnt, it is ordered, and decreed that said bill be and the same is hereby dismissed, and that the complainants pay the cost, for which letexecution' lind thereupon complllinalltBprayed' an appeal to the supreme court '01' the United Stutes, which is granted upon their entering into a bond in the 'penalty of one ,thousand dollars, with two securities, conditioned 'l&C)o cording.to iaw." ' On the 25th of July following said decree, bond was given, and proved by the presiding judge of the court, and thereupon a citation w8:s'issued directed to Lucy C. Freeman and David 1. Field, appellees. which on,the 31st day of July, 1884, was served by handing the same to FrankJohnston; Esq., as attorney of record of the within named ap;pellees., In regard to this the bill of review alleKes; "That said citation, whUe directed to your oratrix" was never served opon her, or on; any a/{ent or attorney of he1'8; so that your orat-rix avers that she was never before the supreme court on said appeal, and tbat any judgment of the court in the premises' was, 88 to her, coram1lunJudlce, and void." and was decided by the supremecouri Said,appeal was of the .United States April 26, 1886, (118 U. S. ·97,6 Sup. Ct. Rep. 964',) arid the report shows that in fIllid case Mr. Frank Johnston and Mr. J. E. McKeighan appeared for appellees. And it may be noticed in tbjlHl,Onnection that Frank Johnston appears in this court as the solicitor of Mrs. Freeman. The supreme court in passing on the case said: "It results from these views that the lien for partnership debts takes precedence'not only of tbe interest of David I. Field, Jr., lUI heir at Illw of David I. Field, ltut of Lucy O. Freeman's right of dower. As. however, dower was actually HS8ignl'd to her nearly three yea1'8' before the filing of the present bill, such assignment should DOt. now be disturbed; but no further exaction for detention of dower should be enforced. We think, therefore, that, upon the allegations of the bill, the complainants are entitled to relief. and that the demurrers should have been overruled." Arid, the decree of the circuit court was reversed, and the cause remanded, with instructions to overrule the demurrers, and to' proceed in the caseaooording to law and the principles announced in that opinion. Pending the appeal aforesaid, on the 14th of June, 1884, Mrs. Freeman pushed ber cause for back tents on the dower estate to a decree, and recovered $2,215, and costS. The amount of this decree Mrs. Pattie A. qIaY. paid in full. On retQrn of the mandate of the supreme Court a decree was rendered in the case Qf Pattie A. Clayet cU. v. Lucy a. Ji'reeman et al., overruling the demurrer· of the, defendants to cOmplainants' bill, and issuing an injunction "'9stmilling David I. Field, Jr., from the
nDlCBAL .REPORTER,vol.
52.
further .proseclltion, of suit a.gainst complainants, and fromsuing1ont final process for the enforceUlent of a judgment for ren. obtained therein; and upon the same daY'complainants granted leay,e to . fi.lld&.!,upplemen:taI1 lIill ?:p ,the result cause of Lucy O"F-reeman againsttbem for Qf rent, andfluoh facts in conneetioo'therewith'as they-may desire,&nd,praying'such.relieftouchthey may ,be advised;" '. :.' as follows. . : "(l}l A.fter, the filing ott.he. in this caqse, ' tile. defendin against for anti·:L.pC.'iEreeman iU'xeil.Mgelli dnrent upon BB41for,h'l!r dower interest in .the aSJJhowo,Iib.,the,plea<lin8s,."al1,on tl;le 12th c;Jl/oy of .June, A, D., after her demurrer and exception to your orators' original bill lilu.stained. a flnal decree against your orator . .A. Qlay for thousand ail.\;\ ni,ft'llty.ltwoand thirty.lfetlfone.hundredtb'8 dollars; MdeostS.. , On the 1884, on,inotion,tbis jUdgment.or decreeliwas reduced to',two ,two hundtej1: lUll! one-hundredtbs dj)llars, tbe same, jpthe the. . of t'6e saId <1Istrlct court, from whICh there was n,o appeal, Ils,1ittlle'record of 'said cause, doth apptlar. "(2f That said recovery and'payment 'Was not accord1118' rtdJligb1< and .justice" fromtbe opinion of the supreme $loutt of the l1oitedBtateaon your oratdus? appeal to the above decree ofrthiacourtjn this'ca'Use, :lmd:the said Lucy,.O. Freemanougbt in this, caUSa to' be. .decreed or Qe compelled and 'Mjndgoo./tO::restore. th6:8&idsum and CllSPs to your to accept it,88 a her in any accounting hereafter to be ,had in the'e!u!sel" "'{lhll premise!! odnsidered, your orators pray'as 'prayed j n: the origitltlt.bill) aqlltbat the said Lucy! Freeman be adjudgedtlt re$tonLto them fJhe; Wl'ongfJlJJ1 ,by her Ilaid and. for general
.
,,1 :.
ahd as' answered as followS: " , ' , "As to supplemental bill she says that on the 30th day of Septem. bel'; 1880, filM 'Againstthe,complainanli bet ;original bill of'Cbmplaint'in the' cbancel1"court of Bolivar county,; Missl,ldemanding:. of complainant rentst<orthe,dtrwer of respondent in landsuf. bev former ,bilt1<kDavid,I. Field. deceased, 'and whichicomplainantl had wro,llgfully'with. bela'from her. Said :cau$'was' removed to this 'court, and ontbe 10th day bfAugUtit, 1882, the complainant filed against respondent :this, her. original bill in this cause, underwhloh:respondentwl\senjoined her 8uit aforesaid. That afterwards, on the 6th day of March, 1884, after demur. rllr original bill slj,i4 118ving been by this COllrt, said injunction was and the bill dismissed. Inrimking said neetees of dissolution and dismissal, the coutt' offered to l'etainthe- bill for the ptitpoa8 of stating tbe accottntbetweenthe complainant and respondent; yet .oowplairiant, well knowing'ibatshe could appeal this caijse to· tlie supreme cp,urt .of Unitl'ld States, and copld. not appeal the other if it ,should result for le8s than $5,009.00, deliberatelv elected not to have said bill so and thereby to its in so. far' as this account is concetned.Thereupon YQ,ut J,:espondent proceeded with her cause, as she had a right to do, arid said calise .tesulted, on the 16th dll.yof June, ·1884, as ill stated ili .mId supplementiWblll;itl a deoree in favor ·of your respondent aga.ins' the comp4\inant for the sWn!oJl $2,215.00, not the 8um 4011a1'8, &I
, .·
>' filedhe\o answer'totbe"oIigiMlbill, f