70 F. 12 -

12;

70.

fide transaction.·· .If a grantee fails to record an instrument, he does so at bis peril, and accepting the testimony of Mt.'Neiler that the failure to record the deeds, the consideration for which exceeded one-tenth of the capital stock of the evidenced by notes fre· quently renewed, was due to an oversight on his part; no complaint can be made. if such results in loss. While there may have been no agreement that the deeds should not 'be recorded, it is impossible to resist the conclusion that there was a desire and intent on the part of the bank and Snider to shield or benefit the latter at the expense of some one else.' Had the intent of the bank been merely to protect Of secure itself, as it had a perfect right to do, a mortgage or a deed for the amount of the indebtedness would have sufficed. In my opinion, the action of Mr. Neiler, the president of the bank, enabled Snider to keep up a credit to which he was not entitled, and, on the strength 'thereof, to obtain money from complainants, whereby a fraud in law was perpetrated upon them. A decree will be entered declaring the. deeds of conveyance from Samuel P. Snider to Austin'F. Kelley null and void' as against the rights of complainants herein.

FOLSOM v.

et al. September 23, 1895.)

(Circuit Court of Appeals, Eighth Oircuit.
No. 601.

NEW TRIAL

When a motion for a new trial of an action at law has been made in the trial court, under a statute authorizing it, and has been heard on the merits, and denied, equity will not entertain a bill for a new trial of the action, based upon the same grounds.

OF

ACTION AT LAW.

Appeal from the United States Court in the Indian Territory. F. G. Barry, C. L. Herbert, and Yancey Lewis filed brief for appellant. W. O. Davis filed brief for appellees. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. CALDWELL, Circuit Judge. On the 9th day of January, 1893,: the appellees, J. S. Ballard and W. T. Billingsley, brought an actioil of ejectment in the United States court in the Indian Territory against J. A. Mays, G. M. Stewart, and the appellant, L W. Folsom, to recover the possession of the W. ! of lot, 1 in block 66 in Adkin's addition to the towJ;l of Ardmore, in the ,Indian Territory. The process in the action was du,ly served on all tl:le defendants, none of ,whom answered at. the, return . At the October term, 1893, Mays and Stewart ,. filed a disclaimer; and, the defendant FoJsom not answering... judgment by default; was rendered against him. In apt time, and during the term at which judgment against the defendant Folsom was rendered, he appeared, and filed a motion to v:ac:;l;te and set aside the ; for . new.triaJ" f()):, grounds, whi'Chmotion the

V. BALLARD.

13

court overruled, from which ruling an appeal was takeBjbut not prosecuted. . Afterwards, the appellant Folsom filed a bill in this cause against the appellees, Ballard and Billingsley, praying that the judgment in the ejectment suit be vacated, and a new trial ordered. 1.'he lower court sustained a demurrer to the bill, which ruling is as· signed for e r r o r . · . The grounds for a new trial set up in the bill are, in substance, that the appellant purchased the property from one Carter, supposing he was getting a good title thereto; that when the ejectment suit .was brought against him for the property he went to see Carter, who told him the suit would be defended, and appellant's title and possession protected, and that the agent of Mays, one of his codefendants, gave him the same assurance; that Maysemployed a firm of lawyers to defend the suit, and appellant was advised that they were defend· ing the same; that his codefendants filed their disclaimer in the suit, and thereupon the suit was discontinued as to them, and a judgment rendered by default against the appellant on the 6th day of Novem· bel', 1893; that the case was docketed for trial on the 14th of that month; and that no judgment could regularly be rendered therein before that date. It is averred that "as soon as petitioner heard of all this he employed counsel, Judge John M. Hinkle, to apply to the court for necessary relief, who thereupon moved the court for a new trial; setting up, substantially, the fraudulent conduct of the said codefendant Mays, with the additional ground that the case was heard and tried before the day set for the hearing thereof, contrary to the law in such cases made and provided, and other grounds mentioned In said motion." It is also averred that the court had no jurisdiction of the parties or the subject·matter, and that the judgment was reno dered therein "without the knowledge or consent of this petitioner, to his great surprise, injustice, and in utter bad faith of his codefend· ants, and especially of the said Mays, who, by this cunning scheme and fraudulent device, betrayed this petitioner into the hands of the enemy." There is no averment in the bill that there exists any ground for a new trial other than those presented to the law court in themotion for a new trial, which that court denied. The bill and exhibits thereto disclose the fact that it is merely a renewal in a court of equity of the same motion for a new trial that was denied by the law court which rendered the judgment. Not a single new ground for a new trial is set up in the bill, and it is not averred that any exists. The motion for a new trial was filed in a law court in apt time, and considered upon its merits and overruled by the court during the term at which it was filed. The grounds relied on for a new trial in the motion and the bill are such as may be embraced in a motion for a new trial under the Code of Practice in force in the Indian Territory. Mansf. Dig. § 5151. The supreme court of Arkansas, construing this section of the Code, has said it does not divest courts of equity of their ancient and inherent jurisdiction to relieve against fraud or mistake, and to grant new trials for these causes. Leigh v. ArlUor, 35 Ark. 123. In Pomeroy's Equ"it;y Jurisprudence, it is said that the relief· heretofore obtained by a bill inequity for a new trial is,under

J'EDEBAL REPORTER.

vol. 7O.

the modelm Codes adopted' by many· of the: states, now obtained "by nieansofalmotion for a new trial, and the necessary occurrences for a resort to equity have been lessened. Equitable jurisdiction, however, has not 'been abrogated, even in those states, and it is constantly invoked in the other commonwealths." 2Pom. Eq.Jur. § 836. Later on in his treatise the learned author states the rule as to the effect of these statutory, provisions relating to new trials on equity courts snits therefor, more strongly. He· says:
"The orig1tlaJ occasion for this special jurisdiction [of courts of equity to grant new trials] has disappeared. In England, and in tnost if not all of the American states, either through statutes or through jUdicial action, the courts of> law have acquired, and constantly exercise, .full powers to grant new trill-Is wl1enever, from the. wrongful acts or omissions of the successful party, or from ae<:ident or the 1iJ.istal{e of the other party, or from error or misconduct of the judge or the jUry, there has been a failure of justice. In <;>ther words, the powers. of the law courts to set aside verdicts or judgments are so ample as to meet all the requirements of equity and justice, and the special eqUitable jurisdictioI\ ,vith .respect to this matter has become obsolete in the very large majority 'of the states, if not in all of them." 3 Pom, Eq. JUl', § 1365.'

Assu.ming,th:;l.t under the Arkansa.s Code, inforce in the Indian jurisdiction court. of to grant new trials upon a still exists, the question remains whether that ju, exercise\'! in·this case.. ,. When a statute authorizes a motion f,oJ,' 'a 'new trial to be ,made in the trial COUI.'t, and enumerates causes and such a motiOn is filed in the law court, and heard on its and denied, can the party filipg the motion afterwards inyoke t:he. ;aid of a court, of equity to grant him a new trial for the very same causes that were held to be insufficient by the law court? We are very clear that a bilt in, equity for a new trial cannot be maintained in SUch. a case. A court of equity possesses noa.ppellate or pow.erever couctsof .l:;lw.,Anq it is well settled that wl?ere a motionfo,i- a new trial has beellIJtade in the trial court, and refiIsed, it cannof be successfully renewed in the form of a bill in equity in a chancery; corrt, on the same grounds. The law court had full jurisdiction of the subject-matter and the parties, and its judgment oV,erriiling the motio)1 for a new tria;! is no more subject to review by 'a cQurt of equity than is its judgment in any other case. In Siinpson,v, Hart, 1 Johns.Oh. 97, Chancellor Kent said that where courts of law and equity have concurrent jurisdiction over a question, and it receives a decision at law, equity can no more re-examine it than courts of law, in a similar case, could re-examine a decree in the court of chanC ry. In Matson v. Field, 10 Mo. 100, the court held that a court of equity will not interfere by:injunction to restrain a judgment at law for causes which, on a m'Otion for a new trial at law, have been ' Tbe conclusion reached on, this point in the case makes it unnecessary to consider any of thfl ,other questions discussed in the briefs of counsel, and particularly the question whether the bill states a case entitling the appellant to a new trial; that question having been deteJ;'!l1il;leQ:,byJ4e law court on for a new trialllled in

MITCHELL V.NORTHERN PAC. R. CO.

15

that court, and the appellant's remedy for the correction of any error in the ruling thereon being by appeal to the court exercising appel· late and supervisory jurisdiction over the court that denied the mo· tion. . When the bill in this case was fiIed the court granted a temporary injunction against enforcing the judgment at law. This injunction was afterwards dissolved, and the bill dismissed, and a judgment reno dered in favor of the appellees for the damages sustained by reaSon of the issuance of the injunction. Much of the brief filed on behalf of the appellant is taken up with discussing the alleged elTor of the court below in rendering judgment for the damages on the dissolution of the injunction, but this alleged error is. n0t found in the assignment of errors, and cannot, therefore, be noticed. The onlyer· 1'01'13 assigned are (1) that the court erred in dissolving theinjunction; and (2) that it erred in sustaining the demurrer to the bill. These two assignments are, in effect, one. If the demurrer to the bill was pronerly sustained,thetemporary injunction issued in the case was, of course,properly dissolved. The decree of the United States court in the Indian Territory is affirmed.

MITCHE'LL v.NORTHERN PAC. R. CO. (Circuit Court, D. IYIinnesota, Fifth Division. October 31, 1895.)
. MASTER AND SERVANT-RAILROAD EMPLOYES-NEGLI6ENCE OF FELLOW SERVo

A car cleaner, while work inside a coach on a side track, Wll.,El by another coach being kicked against it at an unusual arid'iiangerous rate of speed. Held, that he was exposed to the hazards and dangers of railroading, and could recover under the doctrine laid down in Pear· son v. Railroad Co., 49 N. W. 302, 47 Minn. 9.

'

This was an action by Charles Mitchell against the Northern Pa· cific Company to recover damages for personal injuries. William R. Spencer, for plaintiff. J. H. Mitchell, J. L. Washburn, and J. C. BuIlitt, for defendant. NELSON, District Judge. By consent of parties, this case was submitted to a referee to report findings of fact and conclusions of law; and, upon confirmation thereof by the court, judgment to be 'entered accordingly. The referee reported, in substance, that plain. tiff, on the 25th day of February, 1893, wa,s employed as' a car deaner for defendant at Staples, Minn., and, while so engaged in· side a passenger coach on a side track, another coach was kicked in against it at a and unusual rate (if speed by a' . crew, consisting of a lo<;omotive engineer, fireman, foremah,: and nelpers; that, by reasontliereof, plaintiff was injured, without, negligence on his partjand damages were awarded him in the sum of Exceptions were filed to the report by defendant's cO\lnsel,and, upon' due consideration of the case, I am of opinion that tbere is suf· :ticient evidence to warrant the findings of fact andconelusions ot
$1,500. " , , .