IIUBBELL 'V. LANKENAU.
the· cause of action. He can have no remedy in this· court. It is ordered, adjudged, and decreed that the restraining order or injunction heretofore granted be dissolved, and the complaint dismissed.
HUBBELL v. LANKENAU. (Circuit Court, E. D. Pennsylvania. October 23, 1894.) No. 23. 1.
EQUITY PRACTICE-FoRM OF DECREE.
An opinion filed dismissing a bill, with costs. without a formal decree attached thereto, becomes, in effect, such a decree upon the acquiescence of complainant for a pel'iod of nearly 12 years. A bill of revivor will be stricken from the record, on motion, after the lapse of 12 years of inaction from the date of the last proceeding.
It is the duty of the party desiring the allowance of an appeal to prepa.re the form of a decree, and not of the court or the adverse party.
SAME-Bu,L OF REVIVOR-LACHES.
SAME-ENTRY OF DECREE.
This was a motion to strike a bill of revivor from the record. The original suit was begun on January 4, 1881, by the filing of a bill in equity. On January 23,1882, an opinion was filed by BUTLER, District Judge (}fcKENNAN, Circuit Judge, concurring) dismissing the bill, with costs. There was no formal decree made. The next proceeding in the case was on October 12, 1894, when the bill of revivor in question was filed. Samuel Dickson, for the motion, advanced the following reasons upon argument before the court:
(1) Because, at the time of filing the .bill of revivor·. no suit was pending, the original suit having been settled and ended by the filing of an opinion and the entry upon the docket that the suit was dismissed. with costs. (2) Because the plaintiff had been guilty of unreasonable laches. (3) Hecause the claim set forth in the original bill of complaint would have been barred by the statute of limitations within six years from the date of the last transaction. If the plaintiff had a new cause of action at the time of filing the opinion, .it would have been barred within six years from that date, and no amendment or bill of revivor can be filed introducing a new cause of action. (4) Because the plaintiff had his attention called to the state of the record within less than two years from the filing of the opinion, and, having acquiesced therein, should not now to appeal from the final decree of the court. (5) Because a court of equity considers that done which ought to have been done, and disr<>gards purely formal mistakes or omissions, and the declaration in the opinion filed of record, and in the decree upon the docket, constitutes, in substance, a finl11 decree. (6) Because the formula prescribed in the rule of court for the formal decree was only intended to obviate the necessity. of repeating in the body of the decree the pleadings already filed of record. The entry upon the docket is substantially equivalent, and, having been acquiesced in for more than double the period of time necessary to bar any claim at law, it is not now competent for the plaintiff to avoid its effect.
Chas. C. Townsend, J. B. Townsend, Jr., and F. P. Dewees, opposed.
The only entry upon the docket Is of an opinion filed dismissIng the bIll. with costs. It is not even an order, and far less a decl'ee. Even if a
,decree ,hollhOOeD 'made, the suit woultbitilLbe'Us pendens until the decree p",5$.;." J;,.IS ,not destroyed HY, tilJl.e., 14! p. 185. fWd cases., It was n,ot duty of tmUn'fltf,' the lOSing llarty. to draw II. decree to submit' to the court for the purpose of obtaining the allowance of an appeal. If there Is any laches, such laches is either with the court or the defendants. The new ,cause of action is claimed. This is simply a bill of revivor of a case which is lis pendens. "
BUTLE'n, Distrlct'Judge. The bill is filed 56 of the equity rules. Is there a suitpenqing? This is the only question. I think there is not. First, because under the circumstances the court'6 'aet,iuorderinga dismissal of the bill should be,'treated as '3, final'di'spdelition of it; and if second, because the plaintiff . " . " '. ' " abandoned the suit. : of su$ a, periQd.Qfjnaction the plaintiff should be :u,having treated theconrt'sorder as final...;,the informal decree as a formal one. In effect the court ordered the bill dis.the f?I'tha1 ,decree si.gnified no more;' If the plamti1r'deslred to proceed further'It was hIS duty to in fOnD; it was: nottbe duty court or its derk. ) needed nothing more unless. heeh(»se to pro:ceedf(u·jcosts....,which the record fruitlelllk ' , ;" ,
B'lIlides,r;tbe circumstauces justifY,iaud require, a conclusion that plamU tabano.oned ',the, 81.Jik Bow else can his conduct be accounted for? The lapse of such a period of inaction,unexplained, would of in anY case be suffl,cient of abandonment. .Such iIiabtion ,for a fourth the dme.in. ordiilltryca.ses. justifies dismissal of bills for want of prosecUtion; 'Onder the circumstances of this case the conc:lusion·of abltndoll;ment is unavoidable; An issue ""as 'Tbe of tb,e the result maJT have beell; dISappointill;gl.,' , Tbeplaintiff,acquiesced for twelve years. True he commUll;icated,with the clerk about an appeal and learned ithat the decree riqt 'itl ,.mstead putting it in a,s was his duty desitieq further, proceedill;gs,hE! restE!d ten'years longer and now ask$,the oourt to treat the suit as pending, that he may renew the litigaticm... I repeat: the he acquiesced in the poollounced the suit, is, unavoidable. It would so .had ten years longer, Aside ,from· :these ·conliuderatiQns".however, ·the .delay is fatal. After sucba ,period of inaction thel'evival of the suit and rell;ewal of the would be grossly inequitable. The motiop.' is. sustained.
CITY OF TRINIDAD V. MILWAUKEE & TRINIDAD SMELTING & R. CO.
: TBEl MARY LENAHAN; DOHERTY v. McWILLIAMS et at (Olrcult Court of Appeals, Third Circuit. No.4'Appeal from the District Court' oftha United States for the District of New Jersey. This was a libel by Charles McWilliams and Daniel McWilliams against the canal boat Mary Lenahan, her tackle, etc. (Patrick Doherty, claimant), for materials useil and labor expended in making certain repairs. The district court rendered a decree for libelants, GREEN, District Judge, delivering the following opinion; January 23, 1894: "The evidence in this cause is very conflicting, the only undisputeO fact being that the libelants did repair the boat in question. After a careful consideration of the whole caSe, however, I have reacheil the conclUsion that the 'libel should be sustained." The claimant thereupon appealed. Stewart & Macklin, for appellant. John Grifiln, foc appellees. Before SffiRAS, Circuit Justice, and ·ACHESON and DALLAS, CIrcu1t Judges. DALLAS, Circuit Judge. By the asslgnn:ents of error, It is aJleged, In general terms,' that the decree of the court below is erroneous. This allegation hM not been sustained. No question of law Is presented by the record, or is suggested by the argument which has been submitted on behalf of the aI!pellant The district court, upon the conflicting evidence which was before it, reacheil the conclusion that the libel should be sustained, and our own, examination of that evidence satisfies us that this conclusion Ia correct Therefore, the decree is afilrmed with costs. November 1, 1894.)
CITY OF TRINIDAD v. MILWAUKEE & TRINIDAD SMELTING & RlIFINING CO. (Circuit Court of Appeals, Eighth Circuit. No. 401. L The citizens of a certain city, and their committee, agreed .with a smeltIng company to donate to It certain Umd for a smelter, on condition that It wcmld erect thereon a smelting plant costing $50,000. The land was bought by such citizens, anll deeds taken III the name of one of them as trustee. Afterwards the company erected thereon a smelter costing $80,000, and complied with the contract, and such trustee conveyed to it the land. The city council, on the petition of citizens, appropriated $17,500 for the ostensible purpose of straightening iI. stream running through the city. but intending to use the money for ,the purpose of paying for the land purchased as a site for a smelter, and It was ,so used. The company's representatives dealt entirely with the citizens and their committee. and had no actual knowledge of the manner in which the land was paJd for. Held, that the fact tha.t the land was deeded to andb;y such citizen as trustee did not charge the company ,with constructive notice of the fraudulent use of the city'S money, in the purcha.se of the land, and did II,ot entitle the city to a lien thereon'for such sum. , I. B u r B . ' " 'rhe rules relauu. to constructive notice, applicable to, thfa.eue, stated.
DONATION BY CITY TO MANUFACTURING COMPANY-FRAUD-CONSTRUCTIVJI NOTICE TO COMPANY.
October 15, 1894.)