RUTLEDGE V. WALDO.
rights of the mortgagees arid lienholders, whose mortgages and liens were prior in point of time to the acquisition by the appellant ofthe mortgagors' equity of redemption in the premises. vVe decide nothing more than that, in determining the amount necessary to effect redemption, the rule prescribed by the Nebraska statute, as construed by the supreme court of that state, should be followed, and that the effect of the redemption, and the rights acquired by making it, must be left to be determined when a case shall properly arise presenting those questions. As the appellant may have been misled by action of the lower court in the premises, the order of this court will be that the decree of the circuit eourt be reversed. and the cause remanded, with directions to that court to enter an order immediately upon the receipt of the mandate of this court giving the appellant the right to redeem, as he may be advised, within 10 days after the entry of such order. Ordered accordingly.
RUTLEDGE v. WALDO et a1. (Circuit Court, S. D. York. "ray 12. 1899.)
MATTERS OF DEFElS'SE TO REVlvon-BuRDEN OF PnOOF'.
In defense to a bill of revivor to carry into effect a decree in a suit which has abated by the death of the ol:iginal complainant, the defendants may show that the decree was rendered without jurisdictionovPl' their persons, but the burden rests on them, in sueh case, to prove that the attorneys who appeared for and assumed to represent them In the case acted without authority.
In Equity. R. H. Worthington, for complainant. Preble Tucker, for defendants. WALL.A.CE, Circuit Judge. This is a bill of revivor to carry into effect a decree against the defendants in a suit which has abated by the death of the original complainant. While it is no doubt true that generally the sole questions before the court in such a bill are the competep.cy Q,f the parties and the correctness of the frame of the bill to revive, I have no doubt that the defense introduced to the present bill, that the original decree was obtained without jurisdiction of the persons of the defendants, is good if established by the proofs, because, in that event, the o,riginal decree would be void, and no subsequent proceedings could be founded upon it. I am of opinion that the defense is not established by the proofs. The burden of proof is upon these defendants to establish that the appearance in their behalf by the attorneys who assumed to represent them in the original action was unauthorized. Hill v. Mendenhall, 21 Wall. 454; Osborn v. President, etc., H Wheat. 738. These attorneys were the law firm of Tucker, Hardy & Wainwright. The defendant :\frs. Tucker was the wife 9f one of them, and the defendant Miss vValdo was the sister of Mrs. Tucker. These attorneys had represented the defendants in other litigations of the same character, pending about the same time. when they appeared for them in the original action. It cannot for
94 FEDERAL REPORTER.
Tucker; nor can it readily be believed that Mr. Tucker would have given these)nstructionl;> unlel;ls he had understood himself to be authorizedto.do so, aI", otherwise he would have been deliberately lending himselif to a deceptio:u calculated to jeopardize the rights of the complainant. The lapse of time l!lince the OCcurrences afford a charitable explanation of Mr. Tucker's present testimony, as well as that of Miss Waldo, and sugges,ts that they have forgotten the facts rather than intentionally misstated them. The relations between Mr. Tucker and the Qefendants render it extremely impropable that they were not informepof, the commencement of the action, or that Mr. 'Lucker's intervention in their behalf was without their sanction. The case is one where conduct is of far more probative force than asseverations or denials by witnesses. . A decree is ordered for the complainant, with costs.
amQmtmt be believed that Mr. have of the action, and the steps in it he did, without the instructions of Mr.
DIMICK et a1. ,v. SHAW.
(Circuit Court of Appeals, EighthOircuit. No. 1,136:
April 17, 1899.)
A cO}1rt of equity has jurisdictlon'of a suit to enjoin a trespasser from working a mine upon, and removing mineral from, land the title to, which has been finally adjudicated in complainatlt's favor.
ApPEAL-REVIEW OF INTERLOCUTORY ORDER
A circuit court of appeals will not disturb an interlocutory order granting an injunction where the questions, of Jaw or facttp,be ultimately determined are difficult, and Injury to (he J}loving party will be immediate, certain, and great if the relief is denied, while the loss of the opposing par1;y"wm be small if it is
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. ',Appei(f'frofu theOircuH CCjurlof :the United States for the District
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ThIs IS a,n ,from aJ:1 interlocutoq' order granting a ,temporary InjunctIoJi 'from in' any lUann.er· :working the property known as the 'and fromaxtractmgor removing ores tMrefrom, or removing' or 'selljng any ores; until,·the, final determination of' the' The bill ;tb.at tl;1e :appellee is the pw.ner of a ,large as the "Baca 9:rant No. Four,", his title thereto, having lately been determined by the supreme court of the United in the cause of ShaW-v. Kellogg, 170 lJ'.S. 312; 18.'Srtp. Ct. 632; 'that defendil.ll'ts, while said 'cliU$ was peI;iding In 'the 'fjupreme' court,went into possession of the landSo in, controversy under verbal appellee's mana,ger for tllepurpos!! of, ,prospecting only, the dete,'mination of the cause then, pending ip,the' supreme, 'that after the fiDal ;\letermillatlon of that cil.use,and the decision of' thecdurt that appellee was'tlle owner of the tract, appellants were 'notified to" quit the premises, butreftised, and since then have commenced mining operations on a large scale f:ile:xicass of the; .permIssion gl11,1llted, ,to ;thell}.tq prospect, aI;ld cone tlnue and trespasSes;, tlIat theya,re insolvent, and, unless enjoined 'by a court of equity, will commit an irreparltble injury to appellee's' propeity. ,Appellants filed an answer setting up, 'a;mong other things; the same defenseiif whIch had been expressly adjUdicated by the supreme court in the case of Shaw 'v. Kellogg, supra, an!! ;also that appellants' 'manager