Boyce, 399, 77 Atl. 725; Higgins v. Erie,
R. Co. 89 N. J. L. 629, 99 Atl. 98.

The court below had jurisdiction to enjoin the enforcement of the judgment secured by respondent in the state court. Marshall v. Holmes, 141 U. S. 589, 599, 35 L. ed. 870, 874, 12 Sup. Ct. Rep. 62; Marine Ins. Co. v. Hodgson, 7 Cranch, 332, 3 L. ed. 362; Terre Haute & I. R. Co. v. Peoria & P. U. R. Co. 82 Fed. 943; Payne v. Hook, 7 Wall. 425, 19 L. ed. 260; Barrow v. Hunton, 99 U. S. 80, 25 L. ed. 407; Hendrickson v. Hinckley, 17 How. 443, 15 L. ed. 123; Gaines v. Fuentes, 92 U. S. 10, 23 L. ed. 524; Dietzsch v. Huidekoper (Kern v. Huidekoper) 103 U. S. 494, 26 L. ed. 497; Rochester German Ins. Co. v. Schmidt, 126 Fed. 998; Donovan v. Wells, F. & Co. 22 L.R.A. (N.S.) 1250, 94 C. C. A. 609, 169 Fed. 363; Ex parte Cutting, 94 U. S. 14, 24 L. ed. 49; Indiana Southern R. Co. v. Liverpool, L. & G. Ins. Co. 109 U. S. 168, 27 L. ed. 895, 3 Sup. Ct. Rep. 108; Jones & Laughlins v. Sands, 25 C. C. A. 233, 51 U. S. App. 153, 79 Fed. 913; Credits Commutation Co. v. United States, 177 U. S. 311, 44 L. ed. 782, 20 Sup. Ct. Rep. 636.

The amendment to petitioner's original bill was properly allowed by the district court.

Mutual L. Ins. Co. v. Hill, 193 U. S. 553, 48 L. ed. 791, 24 Sup. Ct. Rep. 538; United States v. Lehigh Valley R. Co. 220 U. S. 257, 55 L. ed. 458, 31 Sup. Ct. Rep. 387; Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Rep. 771; Re Sanford Fork & Tool Co. 160 U. S. 247, 258, 40 L. ed. 414, 417, 16 Sup. Ct. Rep. 291; Re Potts, 166 U. S. 267, 41 L. ed. 995, 17 Sup. Ct. Rep. 520.

spondent, a joint employee of both, was injured by the negligence of the employees of the railroad company_while handling interstate commerce. In either event, the alleged contract is void, as violative of the above statute.

Bank of Kentucky v. Adanis Exp. Co. 93 U. S. 174, 23 L. ed. 872; Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 44 L. ed. 560, 20 Sup. Ct. Rep. 385; Oliver v. Northern P. R. Co. 196 Fed. 436; Malloy v. Northern P. R. Co. 151 Fed. 1019; Hooper v. Wells, F. & Co. 27 Cal. 11, 85 Am. Dec. 211; Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603, 56 L. ed. 911, 32 Sup. Ct. Rep. 589, 1 N. C. C. A. 892; Meehan v. Valentine, 145 U. S. 611, 36 L. ed. 835, 12 Sup. Ct. Rep. 972; Ward v. Thompson, 22 How. 330, 16 L. ed. 249; Shumaker, Partnership, p. 2.

The decree heretofore by the circuit court of appeals on the first appeal of this case, reversing and remanding the cause, was a final decree on the merits of litigation; hence petitioner's sole remedy was by appeal by certiorari to the Supreme Court of the United States, or for the circuit court of appeals to have reserved a right for the petitioner to amend the bill. On reversal the district court was without authority in law or equity to permit the petitioner to amend the bill; especially is this so in view of the fact that the circuit court of appeals refused to permit an amendment, or to authorize the district court to allow an amendment, and petitioner took no appeal therefrom, as appears from a motion of petitioner and the decree of the circuit court of appeals thereon. The district court should have sustained the motion of respondent, and dismissed the bill and dissolved the injunction.

Mr. Thomas Fite Paine argued the cause and filed a brief for respondent: The bill is without equity, for the Bostwick v. Brinkerhoff, 106 U. S. 3, reason that the messenger's agreement 27 L. ed. 73, 1 Sup. Ct. Rep. 15; Lodge upon which the relief in the bill is v. Twell, 135 U. S. 232, 34 L. ed. 153, prayed, is void and unenforceable, as 10 Sup. Ct. Rep. 745; Paducah v. East violative of the Act of Congress of Tennessee Teleph. Co. 229 U. S. 476, 57 April 22, 1908, §§ 1 and 5 thereof, and L. ed. 1286, 33 Sup. Ct. Rep. 816; 1 Fosamendments, for the reason that the ter, Fed. Pr. 576, § 1, note 17; Ameripetitioner was a common carrier by can Bell Teleph. Co. v. United States, railroad, handling interstate commerce, 15 C. C. A. 597, 33 U. S. App. 236, 68 at the time respondent was injured, and the respondent was injured while handling interstate commerce, owing to the negligence of the agents or officers or employees of petitioner, to wit, the St. Louis & S. F. R. R. Co., or the petitioner and the St. Louis & S. F. R. R. Co. were partners or coproprietors engaged as common carriers by railroad, handling interstate commerce, and re

Fed. 542; Post v. Beacon Vacuum Pump & Electrical Co. 32 C. C. A. 155, 50 U. S. App. 407, 89 Fed. 1; The Abby Dodge, 223 U. S. 166, 56 L. ed. 390, 32 Sup. Ct. Rep. 310; Re Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Rep. 291; 3 Foster, Fed. Pr. 2136, 2137, 3155; Mackall v. Richards, 116 U. S. 45, 29 L. ed. 558, 6 Sup. Ct. Rep. 234; Van Doren v. Pennsylvania

R. Co. 35 C. C. A. 282, 93 Fed. 272;, ceed with the case in the United States Preferred Acci. Ins. Co. v. Barker, 32 district court. The messenger's agreeC. C. A. 124, 58 U. S. App. 171, 88 Fed. 814; Hunt v. Howes, 21 C. C. A. 356, 41 U. S. App. 152, 74 Fed. 657; Hubbard v. Manhattan Trust Co. 30 C. C. A. 520, 57 U. S. App. 730, 87 Fed. 51; Southard v. Russell, 16 How. 547, 14 L. ed. 1052; Watson v. Stevens, 2 C. C. A. 500, 5 U. S. App. 101, 215, 51 Fed. 757; Woodward V. Boston Lasting Mach. Co. 11 C. C. A. 353, 21 U. S. App. 463, 63 Fed. 611.

The United States district court was without jurisdiction to entertain the bill in this cause, the gravamen of which was to enjoin the collection of a judgment obtained by the respondent in the supreme court of the state of Mississippi. This bill, as amended, sought injunctive relief not as an incident to an existing cause in equity, but as the primary object of the state courts, first had and obtained; and be


1st. It is contrary to public policy and the comity of the courts for the United States courts to interfere with the jurisdiction of the state courts first had and obtained; and

2d. It is violative of § 720 of the Revised Statutes of the United States (Comp. Stat. § 1242), and of § 265 of the Judiciary Act of March 3, 1911.

Wayman v. Southard, 10 Wheat. 1, 6 L. ed. 253; Leathe v. Thomas, 38 C. C. A. 75, 97 Fed. 136; Whitney v. Wilder, 4 C. C. A. 510, 13 U. S. App. 180, 54 Fed. 554; Mills v. Provident Life & T. Co. 40 C. C. A. 394, 100 Fed. 344; Slaughter-house Cases, 10 Wall. 273, 19 L. ed. 915; Molony v. Massachusetts Ben. Asso. 53 Fed. 209; 1 Foster, Fed. Pr. 694, 695; Sargent v. Helton, 115 U. S. 348, 29 L. ed. 412, 6 Sup. Ct. Rep. 78; Moran v. Sturges, 154 U. S. 268; 38 L. ed. 985, 14 Sup. Ct. Rep. 1019; Nelson v. Camp, 112 C. C. A. 302, 191 Fed. 712; Garner v. Second Nat. Bank, 16 C. C. A. 90, 33 U. S. App. 91, 67 Fed. 833; Central Nat. Bank v. Stevens, 169 U. S. 432, 42 L. ed. 807, 18 Sup. Ct. Rep. 403; Riggs v. Johnson County, 6 Wall. 166, 18 L. ed. 768.

ment was offered in evidence on the trial in the state courts, and the same was held void, as contrary to public policy, as an effort on the part of the railroad company to relieve itself from liability for its own negligence. This ruling should be binding on the United States court, as the petitioner sought the jurisdiction of this court, and did not exhaust its remedy in the state court.

Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119; Freeman v. Howe, 24 How. 450, 16 L. ed. 749; Buck v. Colbath, 3 Wall. 334, 18 L. ed. 257; Taylor v. Taintor, 16 Wall. 366, 21 L. ed. 287; Wiswall v. Sampson, 14 How. 52, 14 L. ed. 322; United States v. Pedroli, 111 Fed. 14; Cavanaugh v. Looney, 248 U. S. 453, 63 L. ed. 354, 39 Sup. Ct. Rep. 142.

Mr. Justice Van Devanter delivered the opinion of the court:

Oscar G. Taylor, an express messenger of Wells Fargo & Company, a common carrier by express, received substantial [177] personal injuries through the derailment of an express car in which he was working, and which was part of a passenger train moving over the railroad of the St. Louis & San Francisco Railroad Company in the state of Mississippi,-the derailment resulting from negligence on the part of the railroad company and its employees. To recover for these injuries Taylor brought an action against the railroad company in the circuit court of Monroe county, Mississippi, and obtained a judgment for $4,000, which was affirmed by the supreme court of the state without an opinion. See Miss., 58 So. 485. In his declaration in that case Taylor explained and justified his presence on the train and in the express car by alleging that he was then in the employ of the express company as its messenger, and, in the course of that employment, was in charge of express matter which the railroad company was transporting for the express company; that this transportation was in pursuance of a contract between the two companies, and that, under the contract, the express car was furnished by the railroad company, and he, as the express company's messenger, was permitted to accompany the express matter carried therein.

The petitioner voluntarily sought the jurisdiction of the state of Mississippi circuit court, and, having been denied relief by that court, did not exhaust its remedy by appeal from that court to the supreme court of the state of Mississippi, and did not exhaust its remedies in the state court, to wit, the While the declaration said nothing more chancery court, and is therefore es- about the nature or terms of that contopped or has waived its rights to pro- ! tract, it is important here to have them in

to that court in that cause a petition wherein it set out the contracts just described, and asked to be made a party defendant. [179] To this the railroad company assented, but Taylor evidently objected and the petition was denied. The railroad company, by its answer and evidence, sought to avail itself of the stipulation in the messenger's agreement, in connection with those in the other contract, but the court ruled against it, and Taylor obtained the judgment before mentioned.

What has been recited will conduce to a right understanding of another suit, the decree in which we are now to review.

mind. The contract shows that it was in-, county, and before the case was brought tended to, and did, cover all express busi- to trial, the express company presented ness on and over the railroad company's road, both within and without the state of Mississippi, for a specified period, including the day when Taylor was injured. It gave to the express company the exclusive privilege of conducting an express business on and over the railroad, and obligated the railroad company to refrain from conducting an express business. There were provisions whereby the railroad company agreed, (a) to transport by suitable cars, to be provided by it and attached to its passenger trains, all express matter of the express company, and the messengers accompanying the [178] same; (b) to light and warm the cars and equip them with necessary conveniences; and (c) to permit portions of its station houses to be used by the express company for the reception, safe-keeping, and delivery of express matter. And there were other provisions whereby the express company agreed, (a) to make stated payments-usually a percentage of the gross earnings for the facilities furnished and service rendered by the railroad company; (b) to assume all risks, losses, and damages to its own property, express matter, and valuable packages transported under the contract; (c) to assume all risk and damage to its agents and employees while engaged in its business on the trains or property of the railroad company; and (d) to indemnify and hold harmless the railroad company in respect of all claims for damages suffered by such agents and employees while so engaged.

There was also a contract between Taylor and the express company, spoken of as a messenger's agreement, wherein-following a recital that he had full knowledge of the service required and the conditions on which the railroad company would permit messengers to accompany express matter on its trains, and that with such knowledge he was desirous of becoming a messenger of the express company-it was stipulated, as a term or condition of his employment, that neither the express company nor the railroad company should, under any circumstances or in any case, be liable for any injury which he might receive while on the railroad company's trains as such messenger, whether caused by negligence of the railroad company or otherwise, and that he would assume all and every risk incident to such employment, from whatever cause arising.

Promptly after Taylor sued the railroad company in the circuit court of Monroe

The suit is in equity, and was brought by the express company against Taylor in the district court of the United States for the northern district of Mississippi. The Federal jurisdiction rests on diversity of citizenship,-the express company being a corporation and citizen of Colorado, and Taylor a citizen of Mississippi, residing in the northern district. The bill, with a supplement and amendment, proceeds on the theory that, in suing the railroad com、 pany and obtaining a judgment against it, which, as between that company and the express company, must be paid by the latter, as stipulated in their contract, Taylor not only violated the messenger's agreement, but perpetrated a legal fraud on the express company; that the judgment is therefore one which, in equity and good conscience, he has no right to enforce; that, if he be permitted to enforce it, the express company will be without any effective remedy, in that he has no property which can be reached by legal process (a fact which is both alleged and proved); and that the express company, which was not a party to that case, and has not been in any wise negligent or at fault, is, in equity and good conscience, entitled to have the messenger's agreement respected, and to demand that the claims embraced in the inequitable judgment be relinquished and the enforcement of the judgment enjoined. The prayer conforms to that theory, and is in substance that Taylor be required specifically to perform [180] and carry out the messenger's agreement, to execute a sufficient release of all claims on account of the injuries received, and to abstain from enforcing the judgment. General relief also is prayed.

Taylor challenged the bill by a demurrer, which was overruled, and after a hearing in due course the express company prevailed. On appeal to the circuit

court of appeals that decree was re-, other grounds in asking a reversal, but versed, and the suit remanded, because, in the court did not discuss the other that court's opinion, the bill did not show grounds. All are pressed on our attenthat Taylor was not in the employ of the tion, and we take them up in what seems railroad company, or that he was solely in the natural order. the employ of the express company. 136 C. C. A. 402, 220 Fed. 796. After the mandate was received, Taylor, conceiving that the decision of the circuit court of appeals fully disposed of the merits and was final, requested the district court to enter a decree dismissing the bill, and the express company requested leave to amend the bill by correcting the defect pointed out by the circuit court of appeals. Taylor's request was denied and that of the express company was granted. The bill was accordingly amended so as to show that Taylor was not in the employ of the railroad company, but was on the train solely in virtue of his employment by the express company, and that, in his declaration in the action against the railroad company, he did not claim or allege any employment by that company, but, on the contrary, claimed and alleged that it permitted him to be on the train because he was accompanying the express matter as the express company's employee. Taylor then filed a new answer, and, on a further hearing, a decree for the express company was entered. By it the district court found that the allegations of the bill, with its supplement and amendment, were all true; declared that the institution of the action against the railroad company, and its prosecution to judgment, constituted a violation of the messenger's agreement and a legal fraud on the express company; directed Taylor to carry out and perform the messenger's [181] agreement, and to execute, within a fixed time, an appropriate instrument releasing the express company and the railroad company from all claims for dam ages on account of his injuries, and enjoined him from collecting or attempting to collect the judgment against the railroad company. On a further appeal to the circuit court of appeals that decree was reversed, with directions to dismiss the bill. 161 C. C. A. 161, 249 Fed. 109. A writ of certiorari was then granted by this court.

On the second appeal the circuit court of appeals put its decision entirely on the ground that the express company was a "common carrier by railroad," within the meaning of the Employers' Liability Act of April 22, 1908, chap. 149, 35 Stat. at L. 65, Comp. Stat. § 8657, 8 Fed. Stat. Anno. 2d ed. p. 1208, and therefore, under § 5 of the act, the messenger's agreement was void. Taylor advanced that and

1. It is urged that the decision of the circuit court of appeals on the first appeal was final, in that it disposed of all questions in the suit and left nothing open to the district court but to dismiss the bill. Had this been so, the circuit court of appeals on the second appeal hardly would have failed to enforce its prior decision. But that decision did not go as far as is claimed. It turned on the sufficiency of the bill, and on that alone. The district court had held the bill sufficient when challenged by a demurrer. The circuit court of appeals held it insufficient, and for that reason reversed the decree and remanded the suit. Had the district court taken that view when acting on the demurrer, it undoubtedly could, and probably would, have allowed an amendment curing the defect. Could it not equally allow the amendment after the circuit court of appeals pointed out the defect and remanded the suit? It, of course, was bound to give effect to the decision and [182] mandate of the circuit court of appeals; but that court did not order the bill dismissed, nor give any direction even impliedly making against the amendment. All that was disposed of was the matter of the sufficiency of the bill. And recognition of this is found in the last opinion of the circuit court of appeals, where it is said that the first reversal was "based upon the insufficiency of the pleadings." We think the decision on the first appeal was not final, and that the district court was left free, in the exercise of its discretion, to permit the amendment. Equity Rules, Nos. 19 and 28; Re Sanford Fork & Tool Co. 160 U. S. 247, 258, 259, 40 L. ed. 414, 417, 16 Sup. Ct. Rep. 291; Mutual L. Ins. Co. v. Hill, 193 U. S. 551, 553, 48 L. ed. 788, 791, 24 Sup. Ct. Rep. 538; Smith v. Adams, 130 U. S. 167, 177, 32 L. ed. 895, 899, 9 Sup. Ct. Rep. 566. It appears that, in denying a petition for a rehearing on the first appeal, the circuit court of appeals refused to direct the allowance of the amendment; but this signifies nothing more than that no occasion was perceived for controlling the district court's discretion in the matter.

2. Section 265, Judicial Code [36 Stat. at L. 1162, chap. 231, Comp. Stat. § 1242, 5 Fed. Stat. Anno. 2d ed. p. 959], formerly § 720, Rev. Stat., provides that "the writ of injunction shall not be granted by any court of the United States to stay

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proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy;" and this is relied on as showing that the district court could not entertain the suit. That court held the provision not applicable, and the eircuit court of appeals said nothing on the subject on either appeal, possibly because in a similar case it had held the provision without application.

Is the suit one to stay proceedings in a state court in the sense of that provision? If it is, the district court erred in not dismissing the bill on that ground. Haines v. Carpenter, 91 U. S. 254, 23 L. ed. 345; Dial v. Reynolds, 96 U. S. 340, 24 L. ed. 644; United States v. Pankhurst-Davis Mercantile Co. 176 U. S. 317, 44 L. ed. 485, 20 Sup. Ct. Rep. 423. If it is not, the court rightly entertained the suit and proceeded to an adjudication of the merits, for the citizenship of the [183] parties and the amount in controversy were within the jurisdictional require


subsisting, by enjoining attempts to frustrate, defeat, or impair it through proceedings in the state courts (French v. Hay (French v. Stewart) 22 Wall. 250, 22 L. ed. 857; Julian v. Central Trust Co. 193 U. S. 93, 112, 48 L. ed. 629, 639, 24 Sup. Ct. Rep. 399; Chesapeake & O. R. Co. v. McCabe, 213 U. S. 207, 219, 53 L. ed. 765, 770, 29 Sup. Ct. Rep. 430; Looney v. Eastern Texas R. Co. 247 U. S. 214, 221, 62 L. ed. 1084, 1087, 38 Sup. Ct. Rep. 460), or prevent them from depriving a party, by means of an injunction, of the benefit of a judgment obtained in a state court in circumstances where its enforcement will be contrary to recognized principles of equity and the standards of good conscience (Marshall v. Holmes, 141 U. S. 589, 35 L. ed. 870, 12 Sup. Ct. Rep. 62; Ex parte Simon, 208 U. S. 144, 52 L. ed. 429, 28 Sup. Ct. Rep. 238; [184] Simon v. Southern R. Co. 236 U. S. 115, 59 L. ed. 492, 35 Sup. Ct. Rep. 255; Public Service Co. v. Corboy, 250 U. S. 153, 160, 63 L. ed. 905, 908, 39 Sup. Ct. Rep. 440; National Surety Co. v. State Bank, 61 L.R.A. 394, 56 C. C. A. 657, 120 Fed. 593).

The provision has been in force more than a century, and often has been considered by this court. As the decisions show, it is intended to give effect to a Marshall v. Holmes, just cited, was a familiar rule of comity, and, like that suit in equity to enjoin one who had obrule, is limited in its field of operation. tained judgments in a state court from Within that field it tends to prevent un- enforcing them, that relief being sought seemly interference with the orderly dis- on the ground that they were secured by posal of litigation in the state courts and fraud which was not discovered until after is salutary; but to carry it beyond that they were rendered; and the question disfield would materially hamper the Fed- tinctly presented was whether the suit eral courts in the discharge of duties was one which the circuit court of the otherwise plainly cast upon them by the United States could entertain and decide, Constitution and the laws of Congress, the requisite diversity of citizenship and which, of course, is not contemplated. As amount in dispute being present. This with many other statutory provisions, this court-after adverting to prior decisions one is designed to be in accord with, and stating the familiar doctrine that "any not antagonistic to, our dual system of fact which clearly proves it to be against courts. In recognition of this it has conscience to execute a judgment, and of come to be settled by repeated decisions which the injured party could not have and in actual practice that, where the ele- availed himself in a court of law, or of ments of Federal and equity jurisdiction which he might have availed himself at are present, the provision does not pre- law, but was prevented by fraud or accivent the Federal courts from enjoining dent, unmixed with any fault or neglithe institution in the state courts of pro-gence in himself or his agents, will justify ceedings to enforce local statutes which an application to a court of chancery," are repugnant to the Constitution of the United States (Ex parte Young, 209 U. S. 123, 52 L. ed. 714, 13 L.R.A. (N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764; Truax v. Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A.1916D, 545, 36 Sup. Ct. Rep. 7, Ann. Cas. 1917B, 283; Missouri v. Chicago, B. & Q. R. Co. 241 U. S. 533, 538, 543, 60 L. ed. 1148, 1154, 1156, 36 Sup. Ct. Rep. 715), or prevent them from maintaining and protecting their own jurisdiction, properly acquired and still

and also showing that such a suit is not one to review or revise the action of the court rendering the judgment, but is a new and independent suit for equitable relief-answered the question by saying: "These authorities would seem to place beyond question the jurisdiction of the circuit court to take cognizance of the present suit, which is none the less an original, independent suit because it relates to judgments obtained in the court of another jurisdiction. While it cannot

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