iietwith or contradiction of it, should be likewise regarded. If this l'lJle is not clearly within the former, it is within the latter class. The defendants' plea, therefore, is disallowed.
v. WADDELL et ale
(Circutt Oourt, N. D. Georgia. March 11, 1892.) 1.
, Whljln. on arranging the parties according to their interests in the controversr. tbe 'jurilldiction of tlie federal court will be taken away because of the citizenshlp of; o'le. party,. suchpll.rty may be dismissed, and the question will then remain whetpershe is a necessary party. Horn v. LocTMart, 17 Wall. 570, followed. ," ,In passing upon a question of juriSdiction the '!'Dy excessive delay in raising the point.
IN RAISING THE POINT. FEDERAl.. COtTRTS-JORIS1>XOTION-CITIZIllNSHIP-DISMISSAL
will take into consideration ,
tion,·· ' .Tb.e citizenship and residence of the parties is stated in the bill to be 8$ follows: ,John M, Chtiborne, guardian of the person and properly of
Sarah Vienna Phillips,is,a citizen and resident of the state of Texas, his, wJ\rd being .acitizen and resident of Missouri. Margaret L. GutbiEl and 'her husband;. who is joined with her, are citizens and residents oithe, state of Texas. All of said partil",s l:lre complainants, and Jobn''o.[Waddell, William Peek, E. H. Richardson, Thomas Berry, AlfredSborter, and John M. Berry, partners under the name and style of Berrys & Co., and Mrs. Augusta Phillips, who was formerly Mrs. Augusta Colville, citizens of and residing in the state of Georgia, in said northern :district, are defendants. The purpose of the bill is to recover asse.ts of the estate of Hiram Phillips from John O. Waddell, who was bis guardian, (l'hillipshaving been adjudged a lunatic,) and afterwards hise:lteoutpr. The interest. of Phillips, who is made one of the defeJ;id2\nts, WAS really with the complainants. It appears that she had an ,equal 'interest :with'each of the complainants in whatever might be reo.overedby the bill. , This motfon is made to dismiss the bill for want jurisdiction .on account of citizenship of the parties; the contention being thall Mrs. Phillips should be,a party complainant, and should now be consid.eredsnch, and therefore her citizenship and residence in Georgia would defeat the jurisdiction. Fulton Colvilk, for complainants. B. H. Hill. for defendants. District Judge. It will be perceived thatthis bill has been in court for 14 years, and no question of jurisdiction has ever been raised in it. The defendant Waddell, who now makes the que&NEWMAN,
In Equity. Bill by John M. Claiborne and others against John O. Waddell and others. Heard on motion to dismiss for want of jurisdic-
HOHNER tI. GRATZ.
non of jurisdiction, filed an answer to the bill in July, 1878. It seems clear that with the present parties to the case the court is without jurisdiction. In arranging the parties according to their interests, and as to their respective sides. in the controversy, it will be necesRary to place Mrs. Phillips with the complainants; and the fact of her residence and citizenship in this district will be fatal to the jurisdiction. Bland v. Fleeman, 29 Fed. Rep. 669; Covert v. Waldron, 33 Fed. Rep. 311 ; Rich v. Bray, 37 Fed. Rep. 273. Where there is great delay, as in this case, in raising the question of jurisdiction, the court will consider the delay inpassing..upon the question. See Deputron v. Young, 134 U. S. 241, 10 Sup, Ct. Rep. 539. The counsel for complainants suggested to the court his rig.bt to dismiss as to Mrs. Phillips, which would obviate all difficulty as to the jurisdiction of the court on the ground of citizenship; and the question would then remain as to whether or not it is necessary to retain Mrs. Phillips as an indispensable party, under the equity practice of the court, In Horn v. ,Lockhart, 17 Wall. 570, a case very much like this, being a suit to recover assets of an estate in the hands of an executor, the suit was brought in Alabama, where the executor resided, and two of the parties. mad defendants resided in the state of Texas, ! which was the residence of the complainants. The objection to the jurisdiction was met by the dismissal of the suit as to the tWQ defendants resident in Texas. The dismissal as to these parties, thereby obviating the qUestipn of jurIsdiction, was sustained by the supreme court, and I am unable to see the difference in principle between that dismissal and the dismis!;lal here of the case as to Mrs. Phillips. The two defendants as to whom that case was dismissed had interests identical with the interest of Mrs. Phillips in this case; and, if a decree could be rendered in that case without their presence as indispensable parties, I see no not be rendered in this case. Upon the authority of reason why,it the case just cited, I am of the opinion that, if counsel for complainants desire, an order may be taken, dismissing this case as to Mrs. Phillips; otherwise, the. ,case must be dismissed for want of jurisdiction.
HOHNER !1. GRATZ· . (C'£rcuU Court. S. D. New York. May 7,1892.)
FOREIGN JUDG1IIllNTB-RIlBADroDtCATA-INFIUNGEMENT OF THroE.MARK.
In an equity to rest,rain the defendant from selling in this country har. mOnicas made in Germany. and protected by the complainant's trade,mark. a mo· tion will not be granted, after the cause is in readiness for hearing. giving leave to interpose. a Bupplemental answer setting up a judgment rendered against the same complainant in a suitin Germany to restrain an alleged violation of the same trade-,matk;thE!J,'6.' in which the 'defendant there was the principal of the defendant here; because foreign adjudications, as respects torts, are not binding, and be· cause the granting of an inj unction depends in part upon circumstances which vary in different jurisdictions; and also because neither the parties nor the subject-matter of the two suits are the same, and neither comity nor public policy require or