FEDER,AL REfORTER t
BUCKLES v.CmCAGO,'M. & ST. P. RY. CO. (OifuultCourt, W. D. Missouri, W. D. Jantlarj'2, 1893.)
RES JUDICATA-DECISION ON MOTION.
Plaiutiff took a nonsuit in a state court after the hearing of the evidence and the giVing' of the instructions, and then within a year reinstituted the action in the sam,e court. The cause was than and in the federal court a motion Was granted to stay further proceedingS until plaintiff had satisfied the costs in the first proceeding. Held, that this order, though made on mptiOll. was res judicata as to all questidns involved therein, and plaintiff ¢QuId not, after a regular term of conrt had intervened, maintain a motion to set the same aside, and proeee(l with the cause, except on showing'CO'lhpHance with its conditions.
NONSUIT-FAILURE TO PAY CosTs'-NEW ACTION.
Even decision should not be considered as coming within the of res jUdica'i:a, the court wOltld not entertain a motion to set it aE.ide, and proceed with the cause. when' no new facts were shown, and It did not appear that a,ny new knowledge had come to the plil.l.ntur in the mean time; her only for failure to pay the being her poverty.
At Law. Action by Mary J. Buckles against the Chicago, Milwaukee & St. Paul Railway Company, instituted originally in the state court. In that court plaintiff took a nonsuit after the hearing of the evidenooand the giving of instructions, but afterwards, and within a" year, reinstituted' the action in the sarne court. Defendant then removed, the cause to the federal circuit court, where, on motion made by an order 'Was granted to stay further proceed· ings in the cause until plaintiff had paid thA, costs assessed against her in the fiI'St proceeding m the state court. See 47 Fed. Rep. 424. Plaintiff now moves to have that order "acated. Denied. E;herry &, Hug1;l.es apdW. M. Burris, for plaintiff. Pratt, ;Ferry for. defendant. ' PHILIPS, District On the 16th day of September, 1891. tbis com·t, on (lue consideration, in a written opinion, reported in 47 Fed Rep. 424,' sustained a motion by defendant, staying all further proceedings by the plaintiff in this action until she had paid the costs incurred ina, former suit herein, in which she took a voluntary nonsuit. Now again comes the plaintiff, more than one year after judgment wase-utered on said motion, and after one regular term of this court has i:htervened, and presents her motion, asking to have the judgment .on said motion vacated. No reason is for this motion of other facts than such as existed at the time of the hearing of the former motion, and no fae t is alleged of materiality, which was not known to plaintiff at the hearing of, said fiJ;st motion. She merely pleads poverty, and an inability to provide money sufficient. to pay the costs made in her first litigation. She had her day in ,court on the merits, and she urges nothing now which she might not have urged against the granting of the first motion. It is contended by her counsel. that said motion of September, 1891, was merely incidental to the proceeding in the cause, and that the judgment thereon possesses none of the qualities of a final ad-
CHICAGO, M. & ST. P. RY. CO.
judication to prevent a renewal of the controversy on the original merits of the motion at any time. The general rule may be conceded to be that the principle of res adjudicata has no proper application to mere interlocutory motions. But the rule is too broadly stated if it be sought to apply it to every character of motion by name, regardless of the nature and scope of the motion in the particular case. The reason of the, general rule is founded in the fact that the summary disposition of merely interlocutory motions does not admit of that deliberate consideration and investigation which are supposed to precede the rendition of more solemn judgments; and more especially for the reason that "decisions on summary applications can never be thrown into the shape of a record, and become the sub· ject of review in a,ny other court." Where the reason of the rule does not exist, the rule itself ought not to be applied indifferently. As said in 2 Black, Judgm. § 691:
"Regard is now had less to the form of the proceeding, and more to the subject and condition of the dp.clsion. Further, there is a distinction to be notl\d between orders made upon motions respecting collateral questions arising In the course Of a trial and final orders affecting substantial rights, and from which' an appeal lies. The, latter are res adjudicata,and binding ullonthe parties, uwess reversed or modified by an appellate tribunal."
So Freeman, in his work on Judgments, (sections 325, 326,)recognizes the same important distinction that, where "the decision of ,3 motion is as final and conclusive as the decision of a trial, if the pro" ceeding permits of a full hearing upon the merits, and the ·order made is liable to review in some appellate court," it is conclusive on the parties. What is the nature and scope of the motion sustained in this cause at the .September term, 1891? It involved the right of the plaintiff to proceed further in the prosecution of her suit until she had done equity by discharging the costs adjudged against her in a former trial of the same cause of action, wherein she suffered a V9luntary nonsuit. On that motion she had a full hearing. The issue involved in that motion was independent of the matters at issue in the principal cause. The judgment of the court was, in 'that plaintiffls right to further prosecute her action for damages be, and the same was, perpetually enjoined, unless she perthe judgment at law formed the antecedent condition of for costs in' the former action. As stated in the opinion delivered therein, the proceeding (on the motion) WltS in the nature of the exercise of the equitable jurisdiction inherent in such courts, "intended to prevent the vexatious multiplication of suits." In this view of the wholesome rule, what difference is there, in legal effect, between the judgment reached by the court on the motion and an order granted on petition for an injunction to stay further pro· ceedings in an action at law until certain equities in favor of defendant in the law case are heard and adjusted? Is not the judgment of court granting the prayer for injunction conclusive between the parties thereto? Could not an appea.l be taken from the order, and the action of the trial court thereon be reviewed'? So the effect of the order made, this eourt on sustaining the motio]} was to perpetually bar right;of. action in the suit
at law, unless she complies within a reasonable time with the equitable obligation resting upon her to restore to the twice vexed defendant its costs had and expended in the first fruitless litigation. pro"Voked by plaintiff. That the· order made on that motion could haYe been appealed from and reviewed by the proper appellate conrtlentertain no doubt. Such being the law, the judgment on that motion is res adjudicata as to everything involved in its merits. If it were to be conceded, however, that the principle of res adjudicata has no application, in strictness, to the judgment on the mo1;ion,.the question recurs, why shoUld the court again open up the matter.? , Granted that such motions, where there is no appeal from the judgrtleilt of the court thereon, ought to be re-entertained on new eviden<:e, yet courts will not entertain the renewed rupplication unless something has happened, or for the first time come to the knowledge of the mover, since the decision on the former motion. Even affidavits "which merely present additional or cumUlative evidence on the points before presented are not to be considered as showing new grounds for a motion." Ray v. Connor, 3 Edw. Ch. 478. It rests upon foundations of public policy that there shoUld be an end of litigation, and this rule is, on principle, as applicable to motiolUl like this as to the more formal trial. "If a party will not be vigilant in prosecution or and will suffer the. time to go by for the production of his proofs without a sufficient excuse, he must not afterwards· complain." Ray v. Connor, supra.. The motion is denied. "
LEVY v. BROWN, United States Marshal, et aI. (C1rcult Court, D. Washington, N. D. December 24, 1892.)
HUSBAND .urD WIFE - COYllUNITY PROPERTY DEBTS OF HUSBAND. LIABILITY TO EXECUTION FOB
Under the Washington statutes, denying to a husband alone the power to sell or incumber community real estate, but giving him the absolute disposition of community personal property, rents of community real estate are subject to execution for an individual debt of the husband.
At Law. Statutory proceedings by Eva Levy against Thomas R. Brown, United States marshal, and Ralph S. Hopkins, execution creditor, to establish her claim as owner of personal property levied upon to satisfy a judgment against her husband. Jury waived. Trial by the court. Findings and judgment for defendants. J. B. Metcalfe, for plaintiff. :M. Gilliam, for defendauts. HANFORD,District Judge. The Code of thbr state contains a. chapter relating to claims of third parties to property levied upon under an ex.ecution,allthorizing a party other than the judgment debtor, owner, or entitled to have posseSsion of property who claims to taken to retake the same from the officer, upon giving all affidavit alleging his title or right, and a bond conditioned that he