L.\NGSTRAAT fl. NELSON.
(Cfrcuit Court, N. D. Iowa, W. D. December 81, 1889.)
QuIETING TITLE-EJECTMENT SUIT PENDING.
Under the Iowa statute giving a person in possession of land the right to bring a bill in equity to quiet title, such a bill is not demurrable because it shows that defendants, who are non-residents of the state, have sued complainant in ejectment for the l!!ond, and that such ejectment suit 11 still pending.
In Equity. On demurrer. W. S! Palmer, for complainant. Goo. Struble l!.nd Struble, Rishel &: Hart, for defendants.
SHIRAS, J. The complainant herein is in actual possession of certain realty in Sioux county, Iowa. The defendants herein brought an action in ejectment against complainant,claiming to be the owners in fee of the realty in question. Thereupon the complainant filed the present bill in equity for the purpose of quietinK his title, and asking that the defendants be restrained from the further prosecution of their action at law. The defendants demur to the bill on the ground that the matters set up in the bill as grounds for equitable are fully available to the complainant in the action at law, being, in substance, an estoppel in pais, and therefore, claim that the', bill is not sustainable because there is pending bet'ween the parties an action at law. If the law action was not pending it could not be successfully claimed that the bill Was demllrrable. Theeotnplainant is in the actual possession of the realty" and therefore he could not maintain an action in ejectment against the defendants. Under such circumstances, under the statute of Iowa, he would have the' undoubted right to bring a bill in equity to quiet his title. Ho[f,and v. OhaUen, 110 U.S.15, 3Sup. Ct. Rep. 495. The bill on its face shows that there is pending an action at law for the possession of the property, brought by the, defendants against complainant, and by the demurrer the' point is' made that the pendency of the latter defeats the right to maintain the former; or, in other words, it is maintained that the pendency of the law action should abate the suit in equity. Where a parb brings an action ,ailawand a suit ip equity in furtherance of the same object, the general rule is that the one cannot be pleaded in abatement of the other, for the reason that the remedy sought is not identical. Story, Eq. Pl.§742. The ground"lipon which is based the right to plead the pendency of another suit touching the same subject-matter; as an abatement of a second suit between the same parties, is that the second suit is merely vexatious, and a party ought not to be subjected to the costs and expense of a second suit, when the one already pending willfully dispose of the issue. To sustaitt the plea, it must appear :that there is identity of parties,of 8ubject-mptter, and of reliefsougbt·. !ntlUtanu(l).v. Brune, 96 u. 588. In the case now uOller consideration, tbetwo suits were not instituted by,the sam.e/party. The contention of the.defendants.is that, complainant ought not to .be
permitted to maintain his suit in equity, because they have instituted an action at law against him. As81ready said, the complainant has the right, un'der the statute of Iowa, to maintain a suit in equity to quiet his title as' against the defendants. This he is seeking to do. If the bill, however, should be dismissed because of the pendency of the law action, the :rlaintiffs therein can, at their pleasure, dismiss the law ao. tionj and, being non-residents of Iowa, it might thus be put out of the power of complainant to again get service upon them in this state, and the complainant would be practically defeated in his efforts to settle and quiet his title. This fact, in addition to the difference in the remedy attainable in the two proceedings, justifies the conclusion that the pendency of the action at law ought not to be deemed cause for abating the suit in equity, and the demurrer to the bill must be therefore overruled.
ENNIS ·v. T:aEldAHARAJAU.
(DIBtrIct Oourt. S. D. NBW York. November 25, 1889.)
MASTER AND SERVANT-AsSUMPTION Oll'RISL
A wor:kman employed to work a pal'ttcular machine, which he fully undentands, takes the risk of accidents that mllY happen to him while using it, so long as the machine is maintained in the same condition as by his contract he has a rigbt to expect and to rely upon. The master is not liable for accidents merely because he us not adopted recent improverpents that afford some additional protectton. 'l'he libelant, a longshore-man,was· employed to work a winch in discharging cargo. Th,e steam crank-bar, turned, by hand, came within three inches of a cogwheel. While turning the crank, the libelant's hand slipped, and his thumb and two' fingers were crushed by the cogs. The winch was 12 years old. More recent ones have the cog-wheel protected by a covering. One winch of that kind was on the ship. No previous accident from this winch was proved, except one arising from gross carelessness. Held, (1) that the old winch was not of so dangerous a character as to be unflt fOr use;, and, no weakness or disorder of the winch being shown to have contributed to the accident, held, (2) that the libelant took the risk, and could not recover of the ship, no negligence of respondent. being proved.
,In Admiralty. Libel for person81 injuries. Robert D. Benedict, for libelant. Butler, StiUman &: Hubbard, (WilhelmUB Myndme,ofoounsel,) for claimants.
, BROWN, J. On the afternoon ofSeptember 22,1883, the libelant, while oPerating a winch on board the steamer Maharajah, lost the thumb and two fingers of his right hand, which were crushed between the cogs of ihe wheel and the reverSing lever. The crank-bar, which let the steam on and offj was turned by a horizontal handle four and one-half inches long,