LARISON V. HAGER.
or have acted under some improper bias, influence. or prejudice. or have totally mistaken the rules of law by which the damages are to be regulated; , that is. ' unless the verdict is so excessive or outrageous.' with reference to all the circumstances of the case. 'as to demonstrate that the jury have acted against the rules of law. 01' have suffered their passions, their prejudices. or their perverse disregard of justice to mislead them.'" Barry v. Edmunds. 116 U. S. 565,6 Sup. Ct. Rep. 501; Railway Go. v. Stewart, 57 Tex. 171; Rail,'oad 00. v. Randall. 50 Tex. 261 et seq. The court is unable to say the jury were actuated by other than proper motives in arriving at their estimate of damages. The motion will be overruled; and it is so ordered.
LARISON V. HAGER
(OWCU«t Court. D. Minnesota. November 11, 1890.)
J'UDGMENT-RES JUDICATA-PARTY NOT SERVED.
A judgment in favor of one or more joint contractors is no bar to a suit against another (l'f the joint contractors, who neither voluntarily appeared nor was served with process in the first action, and who was not within the jurisdiction of the court trying the same.
Demurrer to Answer. John S. Wat8on, for plaintiff. T. T. Fauntleroy, for defendant.
NELSON, J. This suit is brought to recover 8 balance due upon a joint contract made for the purchase of lands in Dakota, belonging to business under the plaintiff. The defendants were copartners, name of"D.L. Wilbur, Trustee." In 1889 the plaintiff brought an action in Dakota against aU the defendants upon the same contract as that sued upon here, but personal service in such action was made upon two only of the defendants, (Nickeus and Wilbur,) and defendant Hager was not served, and did not voluntarily enter any appearance in the Dakota suit. The suit resulted in a judgment in favor of the defendants Nickeus and Wilbur, who alone appeared and answered therein. An appeal from such judgment was taken to, and said cause is now pending in, the supreme court of North Dakota. In the suit brought in this court the defendant Hager is the only defendant residing in the district of Minnesota, and none of the other defendants have been served or appear. Hager, in his answer, sets out and relies upon the Dakota judgment as a bar to this action. A demurrer is interposed by the plaintiff to such answer, which raises the issue whether or not Buch plea is well taken. A judgment in favor of one or more joint debtors, who were served with process, is no bar to a suit against some not served, particularly when those not served are noncresidents. There is no privity between Hager and the .defendants sued in the judgment pleaded by him in bar, So that he can take advantage of it. As a general rule a judgment will not opv.44F.no.1-4
estoppel uhless the' benefit derived from it i,s ttiutual; that is, II: judgment cannot be used as evidence against a the ophim.. ' .In the record, of posite verdict would not have been evidence by Hager the parties thereto are not the same as in this case, and he is not prejudiced, and can derive no advantage by it. If Larison had succeeded in the suit in Dakota\ a.nd obtained judgment against Wilbur and Nickeus, he could not enforce'itagairist Hager, who 'WIlS not :within jurisdiction, and was not served with process. Demurrer sustained, withJeave to answer.
NOTE BY JunGE NELSON. Consult Mason v. Eldred, 6 Wall. 231; Detroit v. Roughton, 42 Mich. 459,4 N. W. Rep. 171, 287; McLelland v. Ridgeway, 12 Ala. 482; Bank v. Robinson, 13 Ark, 214; Hall v. Lanning, 91 U. S. 160; Brown v. Birdsall, 211 Barb. 549; Board 01 Pub. Works v. Columbia. Coll., 17 Wa.ll. 521.
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f1. CHURCHILJ,. ,
(Ctrcuct (Jour£, llJ. D.
E. D. November 15, 18110.)
Opera-glasses are dutiable as U articles composed in part of metal" under the last clause of the metal schedule, (Heyl, Dig. 216 ) and no,t as-non"enumerated artlcles under the similitude clause of section 2499, dleYl, .Dig.823,) the metal frame being a necessary and important part of the opera:-glss8, whether W8 re(pU'd size or value.
At Law. ,Rowell· Ferriis, for plaintiffs. " &60. D. Reynolds, U.' 8. Atty., for defendant.
THAYEll.,J. This case has been once tried and anew trial I1has been resubmitted ontha testimony produced at the former trial, and the sole question to be determined is whether under the tariff act of March 3, dutiable under the third clause of section 2499, (Heyl, Dig. 823,) or the htst clause oithe metal schedule, (Heyl, Dig. 216.) If the former view is adopted, the duty upon operaglasses becomes variable; the most expensive glasses, those with a pearl covering, will be dutiable at 25 per cent. a,d valorem, while the less expensive ones, covered with leather, or with no covering over the metal frames, will be dutiable at 45 percent. ad valorem. On the other hand, if the view prevails that are dutiable under the last clause ofthemetal schedule,'as "articles * * * not specia:lly enumerated or provided for, * ;j:. * composed * * * in part of * ** metal," then all of such articles 'will pay the same duty. 'Plaintiffs' chief contention 'is that opera-glasses are "'specially provided for" under the third mAuseof section 2499, and,'as'th'e last clause Of the. metal schedule 'only applies to articles "notsp'eciallyenumerlJ,ted or provided fOf," tbaUhey are not dutiable thereu.nder. Th'evice'of the e.rgum'entistbat it very point inC01'itroversy;' thlltis 'to my I