144 U.S. 665
12 S.Ct. 783
36 L.Ed. 585
GREGORY et al.
BOSTON SAFE DEPOSIT & TRUST CO. et al.
April 25, 1892.
In an action at law, brought in the court below, in the name of Charles F. Jones against William C. N. Swift, judgment was rendered against the latter upon a promissory note dated April 20, 1883. That judgment was satisfied by the payment into court, pursuant to an agreement between the parties, of the amount, principal and interest, due upon it,—$24,926,90. Subsequently, January 10, 1887, that sum was transferred to the credit of the suit in equity in the same court of Charles A. Gregory v. Frederick A. Pike et al., No. 2,170, 'to remain subject to the order of the court in that cause.' On the 26th day of March, 1887, the clerk deposited $24,000 of the above sum in the Boston Safe Deposit & Trust Company, to be held by it subject to the order of the court. The balance was deposited with the Merchants' National Bank of Boston.
The present suit was brought August 6, 1887, by Gregory and Jones, against the above corporations and Mary H. Pike, executrix of Frederick A. Pike, to obtain a decree declaring Gregory to be entitled to the above funds as the proceeds of the note on which the judgment against Swift was rendered. The bill makes no reference to the fact that the fund in dispute was subject to the order of the court in equity suit No. 2,170.
This cause having been heard upon the pleadings and proofs, the bill of complaint was dismissed, with costs to be duly taxed. The circuit judge in an opinion disclosing the nature of the suit, and the facts established by the evidence, held that the decision of the question whether Mrs. Pike, as executrix, had a lien on the Swift notes or their proceeds, to the extent of $25,000, 'belongs to equity suit No. 2,170, where all persons claiming an interest in these notes are made parties. The moneys in the possession of the defendants, the Boston Safe Deposit & Trust Company and the Merchants' National Bank, referred to in the bill of complaint herein, are held by them subject to the orders of this court in said equity suit No. 2,170, and no orders relating to said moneys can properly be made in this suit, which does not include as parties some of the persons who are parties in said equity suit No. 2,170. The bill in this case should be dismissed with costs.' 36 Fed. Rep. 408, 414.
F. A. Brooks, for appellants.
Thos. H. Talbott and John Lowell, for appellees.
Mr. Justice HARLAN delivered the opinion of the court.
We are of opinion that the questions attempted to be raised by the present suit should have been presented, and can be effectively determined only in equity cause No. 2,170, and such we understand to have been the opinion of the circuit judge. But the decree below is, in form, one upon the merits, and might perhaps be pleaded in bar of any claim that Gregory or Gregory and Jones might assert in suit No. 2,170 to the funds in question. Without passing upon any of the questions raised by the pleadings in this case, we hold that the decree should have been without prejudice to any right he or they may have to make such claim in that suit, if they be so advised.
It is therefore ordered and adjudged that the decree below be, and the same is hereby, so modified that the dismissal of the bill of complaint is without prejudice to any claim the plaintiffs, or either of them, may rightfully assert in equity suit No. 2,170, in the court below, to the proceeds of the judgment against Swift. The costs of this court are adjudged to the appellees.