12 F. 227 -

OGLESBY

V.

ATTBILL.

221

OGLESBY and others v. ATTBILL.(Oircuit Court, E.D. Louliana. April, 1881.)
1. EQUITY PRAOTICB

.uro

JURISDIOTION-BILL FOR A NEW TRIAL.

A bill for a new trial in an action at law, on account of frauds practiced and perjuries committed by plaintiff and his at the trial at law,which have been discovered since the term at which the judgment at law was rendered, cannot be filed in any court other than the one before which such trial was had and which rendered such judgment. 2.
SUBSTITUTED SERVIOE.

In such a case service of process upon the 'attorney who represented tlle defendant in the action at law in which he was pla{nCff, in the absence of the said defendant from the district, adjudged to be gooct

Richaf'd De Gray, Oharles B. Singleton, and Richard H. Browne, fot complainants. Thomas J. Semmes, for defendant. BILLINGS, D. J. The question now is solely as to the validity of a service of a subpoona upon the attorney of a party who does not reside within the district of Louisiana. The facts necessary to properly apply the principles of law to the case are as follows: Henry Y. Attrill, who resides in New York, commenced a suit at law in the United States circuit court for this district against.J. H. Oglesby and Jules Cassard, who set up by way of counter.claim (or, as it is termed by the Code of Louisiana, by way of "reconventional demand") a cause of action. This twofold cause was tried by a jury, and a verdict rendered against the demand of the plaintiff (Attrill) and the demand of the defendants, (Oglesby and Cassard.) Upon this verdict judgment was entered. A writ of error was sued by the defendants, and upon this writ the cause is now before the United States supreme court. Oglesby and Cassard have filed a bill in equity, which, if consid· ered according to the nomenclature of bills in chancery, would be denominated a bill for a new trial in an action at law on account of frauds practiced and perjuries committed by plaintiff and his nesses at the trial at law, which have been discovered since the term at which the judgment at law was rendered. If considered ing to the terminology of our Code it would be classed among actions to annul a judgment on the ground that it had been obtained through false swearing. Whether considered as a suit in equity or an action
-Reported by Joseph P. Hornor, Esq. of the New Orleans bar.

22B

FEDERAL REPORTE&

under the Code, the object of the suit is to set aside a judgment in order that a new trial. may be had. This suit, therefore, is not simply a suit to impeach a decree for fraud, but it is a suit to obtain a new trial; for the judgment simply denied the right of complainants to answer, and gave no damages against them. Ido not see how a bill for a. new trial can be filed in any other court than this. It is not like a bill for discovery. which could be entertained by any court with equity jurisdiction. If it were simply a bill to impeach a decree pro tanto, it would, as Mr. Justice Bradley remarks, in Barrow v. Hunton, 99 U. S. 85, upon the authority of Gaines v. Fuentes, fall within the class of original bills. In Gaines v. Fuentes the court very cautiously say, (92 U. S. 17:) "The action, though in form to annul an alleged will and recall the decree of its probate, since the petitioners are not heirs nor next of kin, is simply a suit brought against' a devisee by strangers to annul a will as a muniment of title, and to restrain the enforcement 01 the decree establishing it so far as it affects their property," and distin. guish the case from that of the case of Broderick's Will, 21 Wall. 503, when the action was a suit brought by the heirs to altogether set aside a will and the decree by which it was admitted to probate. The, Gaines Case was held to be removable; the Broderick Case could not be removed. But this is more than a bill to impeach. No other court than this could give the complete relief which the case of the complainants demands, for no other court could render a decree which could do more than operate upon the parties; while the case demands that there should be a decree which will operate on the adverse judgment, remove it altogether as an impediment to the affirmative relief sou:ght by' complainants in their action at law, and give them a new trial in that action. The nature of an application for a new trial, as to whether it is an original or incidental proceeding, is the same whether it be presented by a motion or a bill. It is only a difference in formality. In one case it is made during the term; in the other after its termInation. In either case its effect, if granted, is to rel:ltore the parties to the situation which they occupied before the verdict. In either case it is not only an incident of cause depending, but it is inseparable from it. The case of Ward v. Sibt'ing, 4 Wash .. C. C. 472, is very instructive, and comes nearest to laying down the principle which should con·

a

OGLESBY V. ATTRILL.

299

trol this case. After referring to the inhibition contained in the eleventh section of the judiciary act of 1879, (Rev. St. 739,) restricting the institution of suits by original process against an inhabitant of the United States, save in the district whereof he is an inhabitant or in which he shall be found, the court observes: "Now, this court has never considered this section as applying to inj unctions to stay proceedings at law, or to cross-bills, because, strictly speaking, they ate not original suits, nor are they within the meaning and· policy of the restriction." He then quotes from Cooper's Treatise on Equity Pleading, page 44, where he (Cooper) characterizes bills not original as being thol::le which are filed for the purpose of cross-litigation of matters already depending before the court, of controverting, suspending, avoiding, or carrying into execution a judgment of the court. Justice Washington then proceeds to say that "the practice of the court directing service of the subpcena on the attorney of the plaintiff at law in cases of injunctions, and on the solicitor of the plaintiff intlle original suit, when a cross-bill is filed, is founded on the necessity of the case; the plaintiff in the action at law and in the original suit in equity in most cases residing out of the district in which the court sits, and there being no remedy for the party unless it is afforded by entertaining those suits and countenancing a service on the law agent against the non-resident party; for it is not competent for the chancery court of one district or state to enjoin the proceedings at law in the circuit court of another district, and it is obvious that a cross-bill can only be filed in the court where the original bill is depending." The basis of the reasoning here includes this case. The reason ,why the injunction bill and the cross-bill are ,held to be adjuncts. of .the first suit, is that they could not be brought in any other court than that in which the first suit was depending, as no other court could administer the necessary remedy. This is equally true of a bill to annul a judgment and for a new trial where the judgment is such as is the judgment here, a mere denial of the redress sought by the complainants in their action at law, and where, therefore, no mere restraining process issued in another district, and operating solely upon parties, eould be effective. The intention of congress in limiting the use of original process to cases of inhabitants of the district in which the suit was brought, unless the parties· sued were found there, was to prohibit the dragging of parties defendant from the places of their residence to distant parts of the Union for the trial of causes not instituted by them. This limitation was not designed to include a case where, as here, a demand is made by parties against a plaintiff;

FEDERAL

which iEl a prosecution inseparable from a cause which that plaintiff haEl himself instituted. The process which is issued as a notice to the plaintiff in such a case is not "original j" it is incidental, ancillary, a step in a pending cause. It is not a process which originates a cause, but merely prolongs one already commenced. The plea to the return is overruled, and the service upon the attorney is adjudged to be good. The respondent may have time to anawer as if the service of the subpcena had been made to-day.

ElILL, Assignee,

1:.

AGNEW, SCALES & Co. and others.

{Dietrict Court, N. D. Mississippi. December Term, ISSI.}
1.

AssIGNMEN'rm FOR CREDITORS-WHEN FRAUDULENT.

A conveyance in trust for the benefit of creditors, which provides for crops to be thereafter planted, and for a sale of supplies to the laborers, with no provision that the trustees shall have any power to control the laborers, or over the completion or gathering of the crops, is fraudulent in law and void as to creditors.

2.

SAME-PROVISION FOR ATTORNEY'S FEES.

It is no objection to a conveyance in trust for the benefit of creditors that a provision is made for the payment of a reasonable attorney's fee for the examination of the facts, advice, and drawing up the assignment and securing its proper proof or acknowledgment and placing it on record; but the debtor has no power to contract with attorneys for any further services, which is a matter entirely within tl:e control of the trustees, and for which the assignees will be allowed a reasonable sum.
3.

B..um-VICE MUST BE APPARENT.

To declare a conveyance fraudulent per S6, the vice must be apparent on the face of the instrument, without reference to extrinsic proof.
4. SAME-ILLEGAL PREFERENCE.

Where such an assignment, after providing for different classes of creditors to be preferred, and then' for a distribution of the surplns among those not preferred, and the surplus to the grantor, contained the following provision, "provided, however, that the said party of the second part, or his successors, shall pay no claims unless the correctness of the same shall be established to his satisfaction," the directions extending to all claims, and not restricted to the creditors not named, is fraudulent and void as to the creditors named.
5.

SAME-UNFAIR ADVANTAGES.

Where the assignment gives the first class of creditors the right to determine whether or not the assignee shall give a bond, and if so, to fix the amount, it gives an unfair advantage over other creditors, and is a circumstance to show fraud, but not sufficient to show it fraudulent p61' 88

HILL, D. J. This bill was filed in the ohancery court of Chickasaw county against the creditors of T. R. Sadler, who had made a