MERCARTNEY v. CRITTENDEN and others.
(Oircuit Oourt, D. Oalifornia. July
]]Q,uITY PRACTICE-DOCKET FEE-BEV. ST 28,1885.)
To constitute" a final hearing in equity or admiralty," within tbe meaning of section 824, Hev. St., there must be a hearing of the cause on its merits; that is, a submission of it to the court, in such shape as the parties choose to give It, with a VIeW to a determination whether the plaintiff or libelant has made out the case stated by him in his bill or libel, on the ground for the permanent relief which his pleading seeks, on such proof as the parties place before tbe court, be ,the case one of pro confes,o on bill, or libel and answer, or pleadings alone, or pleadings and proofs. Wooster v. Handy, 23 FED. BEP. 50, followed.
§ 824-FINAL BEARING.
In Equity. Appeal from clerk's taxation of costs. D. T. Sullivan, for complainant. J. L. Crittenden, for defendants. SAWYER, C. J. The bill was filed September 4, 1884. Demurrer filed December 9,1884. The demurrer having been argued and submitted, it was overruled on March 2, 1885, and leave given to answer upon payment of the usual costs. On April 4.th the defendants answered fully to the merits. On May 1,1885, the court dismiloi3ed the bill without prejudice, without looking into it, on the voluntary ap- . plication of the complainant, the defendants not appearing, and not being present. The question is whether defendants are entitled to the docket fee taxable under section 824, Rev. St. on a "final hearing" in equity. The clerk allowed the item in pursuance as he construed the decision and ruling in the circuit court for the Eastern district of Tennessee in Goodyear v. Sawyer, 17 FED. REP. 3. But all the cases, including Goodyear v. Sawyer, were fully reviewed by Mr. Justice BLATCHFORD, of the supreme court, on the circuit, in Wooster v. Handy, 23 FED. REP. 50; and the ruling in Goodyear v. Sawyer, on this point, was oyerruled. The rule deduced from the cases, and adopted by Mr. Justice BLA.TCHFORD, "is that to constitute a 'final hearing in equity or admiralty,' within the meaning of section 824, there must be a hearing of the cause on its merits; that is, a submission of it to the court in such shape as the parties choose to give it, with a view to a determination whether the plaintiff or libelant has made out the case stated by him in bill or libel as the ground for the permanent reo lief which his pleading seeks, on such proofs as the parties place hefore the court, be the case one of pro confesso on bill, or libel and answer, or pleadings alone, or pleadings and proofs. Nor does it detract from the force of this conclusion that what is called an interlocutory decree, as distinguished from a final decree, is often entered as the result of a decision on a final hearing." I shall adopt this conclusion as better supported by authority, as well as reason, as to the proper construction of the provision of section 824 in question. There was no replication in this case, and it was not at issue. There was no question of law submitted for con-. v.24F,no.8-26
sideration and determination by the court. The complainant vol· untarily, upon ex parte application, asked the court for leave to dismiss the bill, and the court granted the order without looking into the pleadings, or deciding any point of law or fact. Had there been afinal decree entered upon the ruling on the demurrer, without further pleadings, the hearing on the demurrer might well have been regarded as a "final hearing," contemplated by the act. See McLean v. Clarke, 20 Reporter, 36; S. C. 23 FED. REP. 861. But the decree dismissing the bill was not a consequence of the decision on the demurrer. The item of $20 solicitor's fee, charged on the bill of costs filed by defendants, must therefore be rejected; and it is so ordered.
BOSTWICK v. COVELL.
«(Jircuit (lourt, S. D. New York. July 17, 1885.)
EQUITY JURISDICTION-ADEQUATE REMEDY AT LAW-INJUNCTION-REv. ST.
t 723. Injunction to restrain defendant's action at law denied, complainant having a full aDd adequate defense in that action, within the meaning of St. j 723.
In Equity. Chas. O. Bea,man, for orator. Wm. H. Arnoux, for defendant. WHEELER, J. The defendant's action at law against the orator, the further prosecution of which is sought by this suit in equity to be restrained, is for the recovery of money alleged to be due upon a written contract entered into by these parties. The orator's counterclaim is for money alleged to have been overpaid upon the contract, and for money paid on account of the failure of the defendant to vindicate the patents which were the subject of the contract. Whether the urator has fully paid what is due upon the contract depends upon its legal construction and effect. If he has fully paid, it is il1eq ui. table for the defendant to demand more; but that consideration does not make the defense an equitable instead of a legal one. There is no ground of defense which, apparently, a court of law would be prevented by any limitation upon its powers or processes from giving full effect to. The orator appears to have as clear a field to defend himself in on the law side as on the equity side of this court. 80 of the orator's claims against the defendant. He might, perhaps, maintain this suit against the defendant if necessary to the defense of the suit which the defendant has brought in this court against him in this district, although the defendant is not an inhabitant of, nor found within, this district, otherwise than as he is found bringing his suit within this district. Rev. St. § 738. But his claims arise out of the legal construction and effect of the written contract, which the court