. .. (1) There is noeq)ilty <)n the oltha !lUI. ;rhere JB not, to be any error in thefecord and proceedings had. in, tile principal case. (3) The complaiJlants; have not .performedQrtendered lJf the decree other causes to be 'assigned atthe hearing." complained of. (41. And The cQurtbelow sustain,ed demurrer, and dismissed .the said bill of review, whereupordhe complainaqts prosecute. this appeal. Edward Mayes and . Johnston, .for. appellants. William L. Nugent, for appellees. .B,ef,O:I"e .PARDEE and MCCORMICK, Circuit Judges, and LOCKE, District
'PARDEE, Circuit Judge, (after statingfhe facts.) The bill of review in this <lase is brought for alleged error of law appearing oil the face of the decree;" To sustain the b i l l - ' ,, '. "'the decree conharytosottlestatutory enartment. or spme principle 0.' rqle o( la.", or eqUity recognized 'f\cknowledged. or se,t.9!lc!sion, or with the forms or ptalitice ofthe court; but the bill cannot be mahitlllned, where the .error is in mere matter of form, or of the decree.is questioned." Danien; (lb.· Pro § 1576. ' . regard errors. of the .face of the decree. the liElhed doctrine IS that you canpi)t look mtq the the case in order to show the decree to be erroneous in its statelI,lent of the fat'ts. But taking the facts to be as they are stated to be on the face of the decree, you must show that thecoql'thaserredin point of law. "'*. '" In theCO\lrtsofthe Unlted8tatea the decre.e usually con,tains a mere reference to the antecedent proceedings without embodying them. But for the pHi'pose of exam! ning all errors of law. the bill; answers, and other proceedings are. in our practice. as much a part of the record bt'forethe (lOurt as the decree Itself; for it.is only by a compari. son with the former that. tIle correctness of tIle latter can be ascertained." Story, Eq. Pl. 407. TheSe propositions are well settled. Whiting v. Bank, 13 Pet. 6; Putnam v. Day, 22 Wall. 60; Buffington v. Harvey, 95 U. S. 99; ThompBOn
v. MaxweU, ld. 397; Beard v. Burts, ld. 434; Shelton v. Van Kleeck, 106 U.
S. 532,1 Sup. Ct. Rep. 491; Bridge Cb. v. Hatch, 125 U. S. 7,8 Sup. Ct. Rep. 811. In the present case the error alleged as apparent upon the face of the decree in the principal suit is the lailure of the court to give due effect to an a.lleged plea of res adjudicata contained in the answer of Mrs. Freeman to the supplemental bill. Said answer also contained a demurrer to the supplemental bill on the ground that the collection by Mrs. Freeman from the complainant of rents of her dower estate was a matter purely personal to herselfand the complainant, and could not be introdur.ed into an accounting ofthe partnership matters between C. I. Field and D. I. Field. The a.nswer of Mrs. Freeman was treated by the complainants as a plea, and was duly set down for sufficiency. About 18 months thereafter, as appears by the record, counsel, to avoid delay, agreed that the said answer was to be taken ass\lch, and considered as if excepted to; the agreement providing that if the exceptions of complainant thereto and the demurrer filed to the supplemental bill should he overruled, the case might be di$posed of finally, complainants being allowed to file excepuons to
sMdiir$"er''1WHtcpotunc. ·And, on the other hand, it was agreed that,
bel. sustained, the proper order. should· be made with or without prejudice; as the court dEltermme. After the said agreement no further notice of the saHh3upplemental bill and answer thereto'seems to have been taken by either the' 'parties orthe court until the decree of June 1, 1888, referring the cause to a master to 'take an account, in which decree it was pro,,;ide,d, follows: . matters arising. in the case as to the claim of against the defendant Lucy C. Freeman. growing- out of the payment to her by the complainant of the amount of the decree heretofore rendered in her favot"Jby'this eourt,and the disposition to be made of the rental accruing on the do\tem;lntlel:est6Hhe said LuCY C. Fl'eeman since hel' occupation .of the said plantation. and otherwise arising in the cause. are reserved to the final heari,qg,; the tpe will ascertain and report to tb,e Of dower in C?llcupiedb;y was let'into possession, and the arrear. .. by . court, he.wl1l rec.overy was..·.ber,etofore rent a . andln r.e.·.. hiS report to the.l1d. forw hiCh·. a ascertain the amount of had;. the complainant \1S6 of the entire plantation, the lllUount due ODllpcount' of tha'r,ental value of the dower allotted t9: ,,,,t4 -H,UCY the end' that"the court by a decree in ,dlaposeof tbe whole : were taken. In reporting totpEl9011rt, tJtEllI\8ster Mrs. Freeman with the amount collected from';r.1rs.,Glay, in 1884,ul:l.s rents of interest tbereoQ:'to. J'tl.nt;Iary 1, 1889; which amount was afterwards made the 6£ the decree rendel'ed,againat Mrs. Freeman in the 'principal suit. It is to be noticed that, although Mrs. Freeman filed other exceptions to the iliaster1s 'report, she made noexceptidn to the master's report holding'her to :aCCQunt :for theamoullt of tb!! decree collected by her from Mrs. Clar.·· ..' , , The supplemental bill of .oomplainants sets forth the prosecution of the suit by Mrs. Freeman for rent of dower estate, pending .the appeal in the 'mairt'caseto'thesupt:eme court;. the recovery of a decree therein, and the paYlhent by thecbmplainantsof the amount of the decree, and its prayer was for the restitution of the money so alleged to have been wrong'fullytcolleeted in said,case. Mrs. Freeman's answer to the supplemental biU'sets.forth the same stateoffacts, averring, in addition thereto, the single fact. apparent upon the face of the recQrd in the main case, that the court, inpQSsing upon the demurrers in the main case,had ofl'ered to retain the bill 'for the purpose of stating the account between the complainantand respondent,and that the complainant had deliberately elected Dotto have said bilho retained; thereby, it is alleged, consenting toitsdismlssal,so far as ,an account with Mrs. Freeman was concerned. said supplemental bill and tbe answel thereto raised 'no issue of! fact between the complainant and defendant. The issue'wtm one solely, of law, and that was as to the effect to be giy.en to of the dower l\te.
FREEMAN V. CLAY.
peal of the main case. The court apparently disposed of this hranch of the case on the supplemental bill and answer thereto, disregarding exceptions and demurrer, and the conclusion, as expressed in the decree of the court, was to the effect that those rents were unjustly collected, and should be returned by Mrs. FreE'mlln. Was this conclusion an error of law? Complainants' original bill was for the express purpose of enjoin.. ing a further prosecution of Mrs. Freeman's suit against Mrs. Clay for the collection of rents of the dower estate, as well as for enjoining the further prosecution of the ejectment suit brought by David 1. Field, Jr., as heir at law Jor one half of the Content plantation, until an accQunt and settlement could be made of the partnership debts due by David I. Field & Co. to the estate of Christopher 1. Field. The court sustained the demurrers of both Mrs. Freeman and David 1. Field, Jr., to the said in open court bill, and dismissed the suit, and an appeal was from such decree. It seems to be of little moment that the court offered to.thecomplainants some other decree, which was refused. The decree that was tendered was one sustaining the demurrers and dismiss. ing the· bill. ·'],he record shows that an appeal was prayed for and allowed in open court, and that said appeal was afterwards perfected in vRcationby giv,ing the required bond, and by issuing citation directed to both parties; which citation appears, by the record, to have been served upon Frank Johnston, Esq., as attorney of record of the appellees, Lucy C. Freeman and David 1. Field, Jr. By the record, then, Mrs. Freeman was a party tothe appeal, and the questionofJaw raised by the supplemental bill and, allswer wa,s this: Where, pending the appeal to the supreme coutt from a decree dismissing the bill brought to enjoin the prosecution of Mrs. Freeman's snit to recover rent of the dower estate and for an accounting, Mrs. Freeman had nevertheless prosecuted her suit for rent to final decree, and collected the same, whether the decree so obtained shall be considered as conclusive of the rights of the parties in the further prosecution of the suit for an accounting after the supreme court has reversed the decree dismissing the bill, and remanded the cause to be further proceeded with according to law. It is true that in the bill of review Mrs. Freeman alleges that she was not a party to the appeal in the main case, because, she says, no citation was ever served upon her, or upon any agent or attorney of hers; and that she never made any appearance in the supreme court. She failed, however, to assert such fact in her ans.wer to the supplemental bill, or in any other pleading filed by her; in the main case; and, as said above, she made no exception whatever to the interlocutory decree directing the muster to report with regard to the rents of the dower estate, nor to that part of the master's report which charges her with the rents collected pending the appeal. It may be further noticed that the suit of Mrs. Clay against Mrs. Freeman and David 1. Field, Jr., was mainly directed to an accounting of the rents of the partnership property, which included the dower estate by Mrs. Freeman; and it would seem that in such an accounting, where each party was required to account for the rents colle,cteo,
if w,ooIdc!DlllKe but the rents rreceived were collected wliintarilyor by 'ptoceSEV oOa w. ' It'wohldJ'lleein; therefore, thll/ttne court was rigpiin assuming that Mrs., iFreeuian was a party to the appeal, and in concluding.that the decreelll'he Gobtained ,against Clay, pending such appeal, for rents of the doW-or 'estate, was not conclusive of the rights of the parties. It nlsoseeu18tb us from lin, inspection of the record that this bill of review is \vithi:nit, equity. On, the filets :stateu in the original bill, filed in 1882 by MrS. 'Clay land BrutusJ. ,Clay against Mrs. Freeman and D., 1. Field, Jr., itis"clear, that: Field, Jr., as h at law, nor Mrs. ir Lucy C.I Freemim, as the widow of David 1. Field, Sr., was entitled to any rents df .the partnership iplantation and property until after the partnership due Christopher E Field were paid and settled. This was . the decisionf.of:,the supremer:court in the case as reported in 118 U. S. 97,6 Sup.dCtlRep. 964." Conceding the contention of Mrs. Freeman thil.t sbewu'nopartytothatsuit on appeal, the law ofthecase is nevertbelessJg'OQdraslafindingby the Bupremecourt of the United States upon a given state of facts. As Mrs. Freeman was not entitled to collect> rentBof' '})erdowef! estate prior to the payment of the 'partnership debt", 'it follows that she obtained pending the proceedings on ap}leal, &lid; the 'money she 'recovered were inequitably recovered. ' In short, the record shows that, in the proceedings that have been peodingfor some ye!lrslbetween the heirs of Christopher!. Field, ontl!le;cm8'sWe;and the widow and heirs of David '1. Field,.outhe other, Mrs. Freetmiq.qhasobtained,fromMrs. Clay the sum of, $2,215, which she hadnqulliglit to, aqdwhichshe,contrary to equity and good conscience'l'.etaiQs. 'Thedecreeof the cirouitcourt is affirined,with costs. , '
(Ciroott:OiM1 Qf'A!ppeals, Ff.rst otrcuu. September 27, 1892.
1. ApPIIAtJABLSI OltDE'Rs...;.INTERU>CUTORY DEOREJr-rNJUNCTlo'lt nr PATENT CASES-
A decree. whicb.is rEmderooafter full hearing on the merits, 'aild which sustains the ,validity: of a parenti,'oeelares'infringement; and awards a perpetual injunction and, 'an '\IoOco!llltin#l', is au. decree," granting an, injunction, from wbfcb an appeal will lie to the circuit court of appeals, under section 7 of the act of March8j ll:lllll .Jones 00. v;'Mu'Ilger, etc., 00.;1'>0 Fed. Rep. 785, 1 '0.' C. A. 668, apJ! · . ' ,", '
'The term "interl()cuto1'y'oi'der or decree" wast used iuits broadest sense in this eectioh, ahd,iho.1It1d be' kiv:elUuU ,sllope,tothe.elld that any, party aggrieved by any I,\r ,QtlCree B'jI;. injuocth>tI, at any stage of the proceedings, may have a spetidyremedy by " , .... . , 9,n, the circu.it cou,rt of appeals, and, in order to qj!termme tne rightfulness Of.. tJ:le lDJunc.tlOn, the court necessarily ,.' e,xwlbeeItll' wblJlecase on the mel'it9, and 'fe8tlhes th'l that t.bere,is no
,J ' .
8. SAME....DIl<lI@IuN ON! Apl'EAy,.:.;.MANDATl!:.