Court, D. WasMngton, N. D.' November 18,1899.)
An indep'endent suit ju equity may be maintain.ed in a federal court between parties of 'diveraeeitizeu&bip ,to vacate a decree: ·state court, and' have a sale of property made pursuant to thatdecree annulled, and complainants',title to the eroperty established, when such decree is alleged to llave been fraudulently obtamed, and hal:! been fvllyexecuted, lliIId when complainants have no remedy by motion in t\le same case because the lan.d has passed into the. handa of third persons, wl1.o claim to be inDocentpurcbaliers, and who must therefore be brought in as new parties. ·AWO'/1)s'l'l1itthv.' QLeason" 9 Sup. Ct. Rep. 237,129 U. S. 86, applied. OowLeyv. Rfl,u,ro(l.fl ,Co., 46 Fed. Rep. 825, distinguished. ,
In Equity. Suit by Dexter Hatch ,and others against .E. C. FerguBon and others to· annul a decree of the state court in a partition suit. On demul!fer to bill. Overruled. Ja:mea Hamilton L_, for plaintiffs. F. H. Brownell, Jor defendants. HANFORD, District Judge, (orally.) The complainants,who are minor children '. of Ezra Hatch, deceased, bring this suit by their mother. as their next friend, asking to have a decree of the superior court of Snohomish county, in this state, in a partition suit, vacated. and a sale of property pursuant to that decree annulled, and their claim of title to the, real estate affected by the decree and sale established. The ground alleged is a conspiracy between E. C. Ferguson, who was appointed by their father's will to be their guardian, and the defendant Henry Hewett, Jr;, to'obtain this property from them for,less than its true value, and that those proceedings, by reason of ·collusionbetweenMr. Hewett and Fe11guson, were hurried through' the superior court.without a fair investigationand ascertainment of facts, and contrary to the principles of: equity. In short, the groUlid for the ,proceeding is fraud. They show thaM\le decree which they ask to have vacated has been fully Nothing remains of the case pending in the sUperior court of Snohomish county. Everything that could be done to.completely transfer the title has been done; and since thecompletion.'ofall the proceedings in the Superior court. Mr. Hewett, who was therpurchBser at. the judicial ,sale; has transferred the·. property to. the defendants the Everett Land·Company and Judson La Moure. In support of this demurrer the defendants claim that this court has no jurisdiction, because the case is still in such a condition in the superior court of Snohomish county that the complainants can go there, and, upon establishing the facts alleged in their bill, have the decree and proceedings vacated by an order of that court. If it appeared to me to be the fact that they could be fully restored to all their rights by a simple motion in the superior court of Snohomish county, I should feel inclined to follow my own decision in the case of Cowley v. Railroad Co., 46 Fed. Rep. 325, and sustain this demurrer. In that case I held that v.52F.no.1O-53
FEDEBAL ·mcm'R'l'EB; vahl52.
an independent suit in equity to vacate a judgment or enjoin proceed. ings to enforce a judgmentoQuldmbt hemaintained:so long as the party had a remedy by motion in the same case and in the court in which the judgment';complained/of,wl:ls ·. But· in'this".CRse, suppose the infant complainants should goto the superior court. of. Snohomish tpe have an ord811·vaclltmg,the decree· aDd the 'prQceedmgsdntbat court, where would who claiming, this ll;lnd, 'The;ywouldretRinthe land by a new, be them... : ,This case isoJle ,m w\liohsomething ·more,ui ,so\lght' than. a'mere vacation: of the judgment erroneously and fraudulently;obtainell,' or to 'enjoin proceed. ingsupon it. There is a new controversy between new parties who were :to' tlie' 's\iiFln coUntY' cburt, wn(i'1n nst ;be br6U'gtit'i to coul't'l)efbre the complainants cab be restored to the rights of which they have been divested. On this grob'ndI hold tha:tthecase comes fully within the rule in the-case of Arrowwmith v. GleastY1t, 129U. 8. 86, 9 Sup. Ct. Rep. 237, and complainants have the right> to sue in this coul't. If an independent suit in equity to establish the rights they clainJ"bere:oon' be in any court, this' court has no right to sayithat they shall gott> By the express provisions:of ihe'aatoC'congress tbilliccourt is given 'concurrentjllrisdiotiollwith;the of the ·state. Itsjurisdietion ds f'Punded '011 the fact that the case involvelll ,'a' controvel'sy 'between: ,citizens 'of different states. On· that they have toe right to' choose· this ast4eir: forum, and the conrt has borigbt< to refuse·to hear their <lase. The Code of this state 'by an expresS provisioIli saves therigbts! of bona fide purohasers: ofland ilold under a deoree or judgment, even against a party: who subsequently to the· sale 'ilucceeds in' fl. proceeding to ,reverse thedooree;or.;judginenHor error, onset ihsidefor fraud. 2 Hill's Gade, § 1437., d'This:qase,isootpplicated:by the fact that one ofthe defendants bas' alread(Y filed: an answer pleadipg,;thatheis ;apurchaser of part ofihe land iny ac1;bal good faith, and, un.der theprovJsioDs of the Code, ilhe maintaima;this:plea\ lhe:wjabe:en1TiU,ed to keep'.that land, .although the proceeding'irintbe !Sl1pe,riorconm.:of, Snohomish ,county beset aside, and the oOmpltiinants\if tltefare wl'ongeq, must be remitted to their remedy by anactionfot ,damages. The bill itselftenders an issue as to the'good faithdfrthe }t1Ill'Cbaseslbyl:the defenrlants, who now claim aU of the land. I therefore overrule the demurrer.
, ; ',I,
(CircuU OoUrt, E. D. LoUisiana. November 18,1892.)
1. ELECTRIO STREET RAILWAY8-FRANCHISE-POWE'RS OJ' COUNCIL.
The charter of the city 01 l'iewOrleans (LlIowS LlL 1882, No. OO,18),provides, in· teralia, that the, cOpimon cOllncil shall have power, to authorize the use of the 'streets for "horse and steam' 'railroads." Held, that the WOrds "horse and steam railroa4s" wer!' not words ofllmitation" and that the counoU was empowered to grant such franchise to electric railways. Laws La. 1888, Act No. 185. provides that the council shall not have power to of any "treet-railroad fraI1cbise except after at least three months' publication of thllterlDltand specifications of said and after adtudicatlon of same to the highest bidder at publio auotiOn, 88. proviaed for by sectIOn 21 of the city charter. ,lIeld that, after a adjudication to the defendant Of a franchise embracing Certain streets, the coulloil could not, by simple agreement with defendant, with,aIlt readvertlsement or any n4;lw public auctioD, change the route so BSto embrace 16, blocks .Qot 11l01ulled in ,the origillal franchise.
.' , " ' '
The provis,i,.on th,at the sate, Sh,al,l be ma,de to the highest bidder means the high.. est bidder ill money, and the sale of the franchise is invalid wheI:C the speciftcationscallfor, and tbe adjudication is made 'to the highest bidder in, "square yards of gravel pavement."
the franchise and filinjt of bUl in front of their premises was one month and eiA'ht days. Held. thatthi8:was not sucbdelay 8S amounted to an acquiescence in the grant. such as :would preclude complainants from asserting their
Tbe interval betwelln the sale
In Equity. Bill by Newton Buckner and others against Jndah Hart to enjoin the construction of an electric trolley railway in front of complainal1ts'premises on Coliseum street, New Orleans. Heard on motion for an injunction pendente lite. Granted. H. H. BaU arid W. W. Howe, for complainants. Farrar, Jotna8 Krutl8chnitt, for defendant· . BILLINGS, District Judge. This case is before the court upon an application for an injunction pendente lite, which has been heard on the bill and amended bill, and upon counter affidavits and exhibits. The first question presented is as to the power of the common council to grant to the defendant the franchiSe to lay and operate upon any of the streets of the city of New Orleans a street railroad which shall be propeUed by electricity after the trolley method or system. The council have granted such a franchise. Had it the authority to make such a grant? The answer to this question must be found in the present charter of the city of New Orleans, (Act No. 20, 1882.) The provision on that snbject is found in the existing charter, (Acts 1882, No. 20, p. 14.) Page 21, § 8, among other things, provides that the common council shall also" have the power to authorize the use of the streets for horse and steam railrQads, and to regulate the same; to require and compel all lines of railwaycir'tramway in any one street to run on and Use one and thesame track and turntable; tocompelthem to keep ductors on their cars, and compel all such companies to keep in repair