NAT. BANK 1I.IUMOB'
We find, therefore, no error in the actit:>nof the' court below, and the judgment for a peremptory writ of mandamm must be affirmed, with costs; but so much time has been occupied by the delays of this case that the budget of 1891 may no longer be available, and it is ordered that this case be remanded to the court below, with instructions that a peremptory writ of mandamU8 issue, commanding the respondents herein to appropriate and pay from any appropriation of 1891, of which there is any surplus remaining in the treasury after all liabilities and expend.. itureshave been paid, as contemplated in section 5 of Act No. 38 of 1879, a sum sufficient to pay said judgment and interest and costs in the court below and herein; and, if no such sum remains of any appropriation of the said budget of 1891, after all such liabilities and expenses have been paid, to, proceed at their first regular meeting after service of said writ to budget and 'appropriate in the estimate and appropriations for the year 1892 such sum, asaforesaidj and it is st:> ordered. PARDEE, Circuit Judge, did not participate in the hearing or determi. I)ation of this case. BRUOE,District Judge. I concur in the conclusion and judgment of my Brother LOCK:E in this case. It is tpy opinion that it was the duty of the common council of the city to put the relator's judgment upon the budget for the year 1891 j that it was an act ministerial in .Its' character, and mandatory, under the provisions of the act of Ex. Sess. 1870; that it was not within the discretion of the common council to postpone thetelatt:>r's judgment. upon the ground that all the revenues of the city for the year 1891 are required to provide for what is called the alimony of the city, or on any other ground, and that the ,decisions of the supreme court of the,state cannot be held, upon a fair consideration, to have settled the law in Louisiana otherwise.
FmsT NAT. BANK Ol!' CLABION,PA., tI. HAMOL
(0WcuU Oourt of Appeal" Ninth
Januar7 26, 1.l!9'A)
The non-joinder of il. co-debtor in a contract or judgment can only be takel1a4· vautage of where such omill!lion does Dot appear 011 the face of the c(jmpl&int, by a plea In abatement, and a defendant who falla to ao pleadIa deemed to have waived
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(SVUabtu b1/the Oourt.)
Error to the Circuit Court of the United States for the Distriet of Washington. , At Law. Action by the First Nationa1.Bank of Clarion, Pa., against George D., Hamor on judgments obtained in Penneylvanie.. From a Judgment, for, defendant, p!a.int.iiIbroushte:r.ror. .
FEDiJJ.U.:LREPORTER, voL 49.
lV. ,O.SharpBtein, forplaiI;ltiff in errOl". Befor,e:DEA,DY, HAW;LEY, and MORROW, District Judges.
DEADY, District Judge., The plaintiff in error brought an action at law the defendant in error on three severnljudgments given on warrants of attorney in Olarion county, state of Pennsylvania, against the defendant and one E. E:untz, for the sum, in the aggregate, of $6,374.45, with intere$t from dates. in 1:888 at the rate of 6 per centum. brought against Hamor alone, and the complaint states The that the judgments were given against him, without mention of Kuntz. TbedeJi:mdant answered, denying knowledge or information of the matteraJleged. sufficient to f9J!m a belief, and also made a, delense to the effect that he was not a resident of the state of Pennsylvania at the date of the judgments, but of WaShington, and., that no process was ever served on him in the actions in which said judgments were given, nor dill he appear therein, and that the appearance of any attorney for him was unaut,horized. " ' , The defense was contradicted by a reply, and the case was tried by the court without a jury. plaintiff offered in evidence duly-certified To transcripts ,of the several judgments sued on, from which it appeared that they were given against Kuntz. as well as the defendant. Objectioo.wasmade to their admission, ,on the ground of variance between them, and, the complaint because of the non-joinder of Kuntz. The objectioDwas and the dellmdant had judgment. record,which have Various other rulings and proceedings appear nothing to do with the merits of the case, or are notre'Viewable here. For instance, there was a motion 'for a new trial , which .wa9 Now" the granting, ,or, denying a motion fora new trial rests, in the national courts, as at common law, in the discretion of the judge., But it is clear that the learned judge of the court below erred in refusing to admit the transcriJIl;s ineviden<:E:l on the ground of variance. They were undoubtedly admissible in support of the complaint, and fully proved the plaintiff's case. It was lo,pgsinoeset1ilEid at common law that b'ne of several joint. debtors on a contract or judgment mllY be sued as upon a sole indebtednessF"and,nnless the'l'Iun-joinder of hi a co-debtor is taken advantage of by a plea in abatement, it is waived. (Jocks v. Brewer, 11 Mees. &"W. 51j (Ja,rtc1;:,v.Eope, lQ, 180; 1 Chit. Pl.'48;', _'" The c0lJekt'ot: i Itlqdernprocooure have given this rultdhe force ofstatute'; (seb'tlOn189:) "Thedefendantmay demur to the complaint when it shall appear upon,the; face thereQt; either * * * (4) that there is a deject of parties plaintiff or de"j.;' :,'i("'. fend'litit.'" This defect (the non-joinder of Kuntz) did not appear on the face of theeomplaant\'.nd the case is provided' for in seotion19,r, which reads: an.1'mtbe matters:mentioned in ,section 189 do,not appearnpoa the face of the,icomplaint.,theolljectiuDmtiy l>e taken by answer."
.This' answer is 8.8ubstitute for the common-law plea in abatement, and only differs from it in name. Section 193 provides: "If no objection be taken by either demuner or answer, the defendant shall be deemed to have waived the same, exnot inclndingdefects of parties. -1M v. Wilku, 27 How. Pr.e 886.; Pavi8ich v. Bean, 48, Cal. 364. Th$jlldgment.is revetSed, and the case is remanded for a Dew trial.
11.Smvu Bow BARR MINING Co.
maintain an action to recover poB8e8810n of real property from which he haB beeJa oUllted by 8 mere intruder. (SUlZabUB Du the Oourt.)
By the law of Oregon, which ill in force in Alaska, .. penon in
Error to the District Courkof·the, Upited States for the District of Alaska. At kctioDof ejectment. by A;rehibaltl, Campbell against the Silver Bow Basin Mining Company. From a judgment sustaining deto plaintiff'scofuPlaint;plaintiff 'prought 'error; Reversed. C. 8.J.(jh'fl¥!n G. lleid, (W: 8,. Wood, of. counsel,) for plaintiff in ' , . . Before DEADY, IIAWLEY, and MORROW, Di!ltrict.Judges. . :
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DEADT,District Judge. This action is brought to recover the posBession9fadump clailnfor mill tailings, lhrrismining district, in the district of Alaska. n is alleged, in the amended complaint, that the claim does not connc) valuel either as agri(fultura! orminerallandj tain fivea.erJsj'snd that the plaintiff i8 the\ownerin:feeo[ the mining claim 'known Bsthe "Fuller First Lode," situate in Sitver Bow bllsin,in the district afore.said, which is very valtul.ble for the gold it contains; that the plaintiff. fortbJ pur»oseof mining said:lode, has built located and appropriated said dump claim, which is about 1,150 feet south'Of said quartz-mill, and more than $5,000, and is essential to the ,prope'r working of said lode; that while the plaintiff was 'so possessed 'and 'entitled to the possession of said dump claim the defendant entel'tSd the BllDle, and ousted'· pla;intiff and still wrongfully witbliolos the possession thereof from the plaintiff." '.' ' There was a demurrer to the complaint, which was by t9:e -oontt·. !' Tbe ease is'1ht\re oiferror, for review of the' decision on the ,demtlrl'et.' ill'M opinion of the court be16w, ,in the recOrd. nOr'it or,appearance of counsel for the defendartt. " ')1