EvereU p.. Wheeler, for the motion. Hetinan H. Shook, contra.
LACOMBE, J. The main pomt raised upon this motion need not be now decided. Inasmuch as the coniroversy is one between a citizen of .a state and.a foreign citizen or subject, and the matterin dispute exceeds the sum of $2,000, it is within the class of cases in which, by the express language of'the fifl)t clause of section 1 ofthe act of 1887, the circuit courts a,re given jurisdiction. Wilson v. Telegraph (Jo., (FIELD and SAWYER, JJ.,) 34 Fed. Rep. 563, 564; Denton v. International, 36 Fed. construction of the second clause Rep. 1. . Whatever may be the .of that section, (beginning "But nO person shall be," etc.,) it affects, not the question of federal cognizance, but solely the question of the place of brin@ng suit by original process in cases of federal cognizance. FaleB v. RailmadCo., 32 Fed. Rep. 673. The privilege which it accords to a defendant, viz., that he shall be sued only in the district of which he is an inhabitant, is one which maybe waived. Halstead v. Manning, 34 Fed. Rep. 565.. It was waived in this case by filing a. general appearance, andansweririg to the merits: In this conclusion Judge WHEELER, with whom I have consulted, concurs.
WAKELEE "'. DAVIS.
(O'ire'Ult Oourt, 8. D. NeUJ York.
EQt1ITY-JURISDJCTION-ADEQUATE REMEDY AT LAW.
On an application for a discharge in bankruptcy, the specifications of tha opposing creditor were dismissed upon the contention of the bankrupt's at· torney that the creditor's debt had been reduced to judgment after the petie tion was filed, and that it could not be affected by the discharge, and the discharp;e was granted. Held, that a complaint in an action on the judgment, which sought only a money judgment, and such other relief as to the court might seem fit, did not state a cause of action cognizable in equity, though it . alleged .·hat defendant was estopped to plead the discharl!:e; there being no averment that defendant had taken or threatened to take any proceeding prejudicial to complainant's rights, or that the bill was flied in aid of another 'action, .
In Equity. On demurrer hill. This action, commenced upon the equity side of the court, is based upon a judgment recovered in 1873, in a state court of California. The only specific relief demanded is for a money judgment. Briefly, these are the facts: In August and September, 1869, the defendant, Erwin Davis, made six' promissory notes, aggregating $15,720, and delivered them, fall ,value, to Henry P. Wakelee. On the 30th of September, 1869, Davis was adjudicated a bankrupt, on his own petition, and Wakelee proved the notes against the estate. On the 28th of June, 1873)
WAKELEE V. DAVIS.
Wakelee petitioned for leave to sue Davis upon the The petition was granted, and on the 18th of November, 1873, upon service by publication, judgment was entered against Davis for $22,760. This judgment is now owned by the complainant, and is the judgment sued on. In December, 1875, Davis applied for his di!'lchnrge, and Wakelee filed specifications ill opposition. charging Davis with various frauds under the bankrupt act. In March, 1876, Davis moved the court for an order dismissing these specifications, on the ground that Wakelee, since proving his debt, had obtained a judgment thereon by leave of the court, which judgment merged the debt, and was still valid and in force, and, having been obtained since the adjudication, would not be a,ffected by the discharge. The motion was granted. and Wakelee's proof of debt was canceled and bis specifications were dismissed. Wakelee's opposition being removed, Davis obtained his discharge. Wakelee accepted the order dismissing the specifications, and did not appeal therefrom because of the statements, made on behalf of Davis that the judgment was a valid one, and would not be affected by a discharge in bankruptcy. The bill alleges that by reason of these proceedings "the validity and binding force of said judgment of November 18, 1873, was affirmed, said Davis was thereby fore\'er estopped from denying the same; notwithstanding his discharge in bankruptcy, then petitioned for, and subsequently obtained." Prior to the commencement of .this suit, the, judgment was dnlYaBsigned to the complainant, no part thereof having been paid. There is no averment that the defendant has taken or threatens to take any proceeding prejudicial to the complainant's rights, or that the bill is filed in the aid of another action. The relief demanded isJilirst, that the defendant pay the amount of the judgment, namely, $22,809, with interest, and the, costs of this action; secand, for such other and further relief as to the court shall seem meet. The defendant demurs on the ground that thl3 bill does not state a cause of action in equity. In her brief the complainant requests, in case the is sustained, that she may be allowed to. amend. An80n Maltby, for complainant. Henry A. Root and Thaddeus/). Kenneson, (J08lph H. Choate, of counsel,) for defendant.
CoXE. J., (after stating thefactB as above.) To the opinion expressed at the argument but little need be added, as I !lm unable to see, after reading the elaborate briefs presented, that the 8tatus of the cause is materially altered. It will be seen that the action is upon a pure and simple,-a judgment obtained upon promissory notes in a common-law court of California. No injunction or accounting or discovery is asked. The complainant does not seek a specific performance, or to set aside the discharge, or any of the proceedings in bankruptcy, upon the ground of fraud. accident or mistake. None of the elements of equitable cognizance are here present. The demand is precisely what it would be were the action at law, namely, for $22,809, with interest and costs. Assuming that no defense is interposed, and that a dMl'ee could be entered in
such it would be for this'su'Lll only, and execution would is. sue immediately to collect'it. " ' It appears from t1lebUlthat the defendant has obtained a discharge in bankruptcyjand at time, and whilE! the petition for the discharge was pending, hiscotlnsel in open court,iook the position that the judgment still stood ofrecbrd and was of full force," and therefore that Wakeleewas not ina position to, oppose the discharge. Although the couosel forWakelee, apparently, contended for the contrary of this proposition, its soundness so impressed itself upon the court that Wakelee's proof of debt was canceled, and his specifications in opposition to the discharge Were dismissed. It would seem, although she does not say so in the bill; ,that the complainant is a,pprehensive lest the mind of the defendant may have undergone a change upon this subject. It is quite eVident'that she believes that he intends to attack the judgment because thesumm6n8 was not personally served, and that he expects to rely on hisdiseharge as a defen'se. 'She'sooks, therefore, to anticipate these obthat the defendant is estopped from raising them because of the proceedings in the bankruptcy court. An action upon an outlawed promissory note is an equitable action, because the defendanthas promised not to plead ,the statute of limitations. An action upon a common.lawjudgment is nota chaneery action, because the defendnntis not in 'a position to att.a.ek it or 'plead a discharge in bankrupty as a defense. It is generally the cause of action, and not the defense, which determines the character of the suitj and it is not easy to see why the situation IS altered by allegations ancillary to and in aid of the principal cause of !lction. Ris unnecessary now to decide whether the occurrences in'the bankruptcy court do or do not amount to an estoppel, for the'reason that, even iftlieydo,' the bill does not state a cause of aCtion in For aught that appears, the defendant may now entertain the Bame view of the ·law that hi!! counsel sU<lcessfully maintained in 1876: He Waiysti1l' think 'that the judgment' is of binding force. Since then he has made no sign. No suit at law has been .commenced against him. He has instituted no attack on the complainant's judgment. ' He hO:s) interposed no defensej he has not even threatened so to do. He may not attack the judgment or rely upon his discharge. He may plead payment, want of title, or other defenses. He may not answer at 'all. lam unable to disoo\*erany theory upon which the compll!tinatit (lan invoke the aid 'of' a court of equity upon the bill in its present form. Theaetion at law.' Itisnomoreachancery suit than it was' inCalifotnia. ' Its character is not changed by anything alleged iIi the bill. The.demur'rer, is allowed. The complainant, if she is so adviSed, may amend within 20 days.
(UireUlt (Jourt.8. JJ.NetJJ York.
PEn Upon the II allowed. The complainant
ot Wakelee v. ant., 280, the demlUTU amend within 20 day'; .
Huset al. v.
. (Oilf'cuit (Jourt,
w: D. Mi88ouri.
(J. JJ. January 14.1889.)
Complainants. who claimed titlEi to certain lands by virtue of a1nortgage and foreclosure thereunder. sought to have .defendant declared trusttje of the land to their use. alleging that one S. had been furnished with money to pay off a judgment lien on the land. and that in violation of such trust he had boughttlJllland for himself at the execution sale, and pending the foreclosure proceedings .had conveyed to defendant. In the.deed .from S. the name.ot the gtimtee was omitted. and it appeared that S. was not bound by tbe fOreclosure proceedings. Held, that S., being a resident of the state,shotildbe made a party.
In Equity. Smith, Silver &: BrO'Wfl". for appellants. Amo8 S. Smifh,and Geo;T. White, for
PlIILIPS, J. This is a hill in equity to have respondents declared trus.tees to the use of complainants of certain lands. situated in Hickory county, this state. The controversy grows out of about the, following state of facts: 'The land formerly belonged to one F. V. Thomas, who Hays of Indiana.. Mrs. Hays to sold the same to one one Susannah, Stewart, taking her note for the purchase money, and a of mortgage on the land, to secure the same. ,Mrs. Stewart assigned and transferred this note and mortgage to one Samuel M. Hays of Inin the diana. In 1875 said Samuel Hays died testate, as is state of Indiana, making the complainants executors of his will. The bill furtherdiscloses .the fact, that at the time ·of .the sale of this laud by for the debt of Thomas to Emily nays the land had Thomas, which fact was then unknown to Mrs. Hays, as also to Mrs. On discovery of this fact, the bill alleges that Stewart when she money was furnished by Mrs, Hays or Thoma/,! to one Adam Stewart, who was going from .Indiana to Hiclrory connty, Mo., to payoff this attachmen,t lien; and that he agreed and undertook to attend to the same. But in disregard, of his prol'Dise and duty in the premises, he not only neglected to so payoff said lien, but at the sale of the land under the judgment in the l!-ttachmentprocee,ding he became the purchaser andreceived.. to liinlseICt,he'sheriff's deed therefor, in violation of his and in fraud. of the rights of the. mortgagee. Said executors) in