. J'EDERAL REPoRTER,
outstabdingj and, further, might be presented as valid of the receiver. They were granted the right, and they assumed the burden of contesting their validity. In their interest the contest was restricted, to this court. The intervention fairly presents the case for them to contest. The demurrer will be sustained, so far as the Central Trust Company of New York is concerned, but be overruled as to the other defendants, who will be required to answer the said intervention by theiule-day in February, 1891.
W AK]jlLEEV; D.wm.
(o£rC'Uilt CO'Urt, S. D. New York.
" " ..,." ,
One WhO lssbout to sue on a judgment wblch is void for want of proper service is entitled to a decree enjoining the j udgmentdebtor from !letting up its'lnvlill1dity, when.it aupears that the latter, while obtablJngo adlsoharge.in hankr:uptcy, secured substantiJl,i benefits by contending that the judgment was valid,&ndwoW,d, not be bOl.l\ld by Jiili disCiharge, ' "
in bankruptcyI because, if he', pleads such discharge" complainant can ,then avail
S. SAME.:....REMEDY AT LAW,
Injunction wlU not issue to restrain the debtor from relying upon his discbarge constituting the e s t o p p e l . ,
herself oJ the
S. STARE DEOISIS-;-LAW OJ!' THE CASE.
.A decision on demurrer Is the law of the Qase until a dlf!el'ent rUle',is laid dowIi by the supreme court, although such decision was rendered by another jUdge thau the one trying the case finally. ,: :" "
Final Hearing in Equity. Anson Maltby, for complainant. Henry A. Root and Thaddeus D. KenneBOn, for defendant. COXl!:, J. This bill is filed in aid of an action at law, which the complainant alleges she is about to commence, upon a JUdgment recovered against the deltmdant in a state court of California on the 18th of November, 1873. Under the decision of the supreme court in Pennoyer v; Neff, 95 U. S. 714, this judgment was void, the summons having been served by publication only, in an action in fJersonam. On the 6th of March, 1877, the defendaut obtained a discharge in bankruptcy froni the UnittJd States court for the district of California, he having been adjudged a bankrupt by said court September 30, 1869. This discharge; j,f there were no estoppel, would be a bar to the debt represented by the judgment. Boynton v. Ball, 121 U. S. 457, 7 Sup. Ct. Rep. 981; . The complainant contends that the defendant is estopped ing the validity of the judgment and from relying 'upon the discharge as it. defense, because in 1876, in the bankruptcy court, he obtained staritial "benefits by contending that toe' judgment was valid and would not be barred by II discqarge. The complainant, insists that' heshotild be held to< the sanie'positionnow) "and prays for an' injuncti6n
COFFIN 'II. , CHATTANOOGA WATER & POWER CO.
ing him from asserting the invalidity of the judgment and from relying upon his discharge as a defense thereto. The cause has been twice before this court upon demurrer. 37 Fed. Rep. 280; 38 Fed. Rep. 878. The facts sufficiently appear in these decisions, and need not be Eitated again. On the last demurrer the present bill was sustained. The court there decided the following propositions: First. That the bill stated a cause of equitable cognizance. Second. That, having affirmed the validity of the judgment in the proceedings in bankruptcy, the defendant is now estopped to impeach it. Third, that if the defendant pleads his discharge ill the action at law about to be commenced, the plaintiff can avail herself of the facts constituting the estoppel, and, upon this branch of the case, is not in need of the assistance of a court of equity. The propositions of law presented are the same now as on demurrer. Some testimony has been taken pro and con, but, upon all important questions, it is substantially conceded that the legal aspects of the cause remain unchanged. It il3true that in deciding the issues presented by the demurrer the court spoke through another judge, but the law there enunciated is not merely the individual opinion of the judge who presided; it is the ' law of this court; to be followed, upon similar facts, until a' different, rule is laid down by the supreme court. A re-examination and discussion of the question involved is, therefore, unnecessary, for the reason that the court is constrained to follow its former decision. It. follows, that the complainant is entitled to a decree for an injunction restraining the defendant from asserting that the judgment of November 18, 187iJ, ' is not valid and does not still stand of record. The complainant is titled to costa.
CoRNWALL 'lI. DA.VIS.
(otreuit Court. S. D. New York. January 7, 1891.)
this cause also.
The decision in Wakelee v. Da'llis, ante, 532, determines The complainant is entitled to a similar decree.
W A.TER &:
(Circuit Court, S. D. Tennessee, E. D. January 8,1891.)
Where a judgment creditor of a corporation files his bill in the cironit conrt to subject the equitable interest of defendant in its mortgaged property to the par.ment of his debt, the owner of the company's property, stock, and franchises WIll not be to becom!" a partr defendant on his petition alleging that he bas already. commen.ced an'eqUlty suit 10 the state court against plaintiff to determine the amount of debt and to set aside certain transactions. between ,them, where' the chancery suit in the state court is in no way affected by suit tile federal court, and the property is .not paying expenses, and the inter-tention of
SUlt. , .. . ,.' " " :; .· ,. ,.