having been a party to it, and the decree not
operating against him, that the writ of posses-
sion be decreed to be void, and the possession
of Brulard i legal, and Brulard advised to va-
cate the premises occupied by him on the
plantation; that an injunction issue, to be made
perpetual at the final hearing, commanding the
defendant, testamentary executor and individ-
ually, his agents, servants, and employés gen-
erally, and Brulard in particular, to desist from
interfering with or molesting the plaintiff in
the possession of the plantation, or his laborers,
servants, and employés; that a restraining or

and interest, on the property of Baptiste Cavailhez, to take effect from April 13, 1863, be recognized and enforced. On the 20 of Feb[122] ruary, 1886, a petition was presented to the court for a writ of possession under said decree, and was granted, and a writ of possession was issued to the marshal, by which he was ordered to eject Marceline Cavailhez and those who might be holding said property under her, "by private deed of transfer or otherwise, since the institution of the aforesaid suit, to wit, March 5, 1884, and during the pendency of said suit," and to put the widow Cavé in full possession of said property. Said writ was not warrant-der issue, pending the motion for an injunc ed by the decree, was issued improvidently and upon a wrongful suggestion, and was null and void. It was executed on February 5, 1886, by serving the writ and copy of judgment" on one Armintor, "who was living in the house and had charge of the property, and he being a major," and the return of the marshal, filed February 10, 1886, states that he took possession of the plantation and improve ments, and then placed them in the possession of one Brulard, as the agent of the widow Cavé.

tion; and for general relief and process.

The demurrer of the defendant, as testamentary executor and individually, alleges, as cause of demurrer, a want of equity in the bill. We are of opinion that the decree must be affirmed. The suit by the widow Cavé was brought in March, 1884. The deed of the plantation from the sheriff to the plaintiff and Maxwell was dated August 15, 1885. That deed was given in judicial proceedings brought by Maxwell against Marceline Cavailhez, widow of C. H. Remick. The title of Maxwell and the plaintiff was acquired during the pendency of the suit brought by the widow Cavé. The marshal properly issued the writ of pos session and put the property into the possession of Brulard, as the agent of the widow Cavé, and such possession was held by Brulard when the present suit was instituted by the plaintiff. The plaintiff was out of possession when he instituted this suit; and by the prayer of this bill be attempts to regain possession by means of the injunction asked for. In other words, the effort is to restore the plaintiff, by injunction, to rights of which he had been de

The plaintiff Lacassagne was in possession
of the plantation, as owner, by his laborers,
servants, and employés, when the inarshal pre-
tended to execute the writ. Brulard came
upon the plantation, and now occupies a por-
tion of the dwelling thereon, but the carpen-
ters and laborers thereon have been continu-
ously and still are in the service and pay of the
plaintiff. He is deterred from going upon the
plantation and exercising his rights of owner-
ship, by the violence and threats of Brulard.
The plaintiff claims to be in possession, though
his possession is disturbed and interfered with
by Brulard, acting under direction of, and ad-prived. The function of an injunction is to
vice from, the defendant.

afford preventive relief, not to redress alleged
wrongs which have been committed already.
An injunction will not be used to take proper-
ty out of the possession of one party and put
it into that of another. 1 High, Injunctions
(2d ed.) § 355.

The plaintiff has not been a party to any suit, and is not bound by any order of a court until he has an opportunity to be heard. Though the acts were in the name of the widow Cavé, yet the plaintiff charges that she was in stigated to do all that she did by the defendant. The question here involved is a dispute about Brulard is an agent, and under the control, of title. The plaintiff has a full, adequate, and the defendant, and of the court. The whole complete remedy at law, and the case is not proceeding was void for want of jurisdiction one for the jurisdiction of a court of equity. of the parties. The plantation is deteriorating If the plaintiff was in the possession of the in value, and the season for planting and pre-plantation when the judgment in favor of the paring for crops is passing, and irreparable in- widow Cavé was rendered, on January 11, jury is being done to the plaintiff. An injunc- 1886, and when the marshal executed the writ [123] tion pendente lite is necessary to restrain the of possession on February 5, 1885, it does not defendant, as testamentary executor and indi- follow that the fact that he was not a party to vidually, and his agents and employés, from the suit in which it was issued, could prevent interfering with the possession of the plaintiff his being evicted under the writ of possession. or molesting him or his agents and servants on A pending suit in regard to real estate is notice the plantation. A restraining order ought to to all the world. During the pendency of the issue, pending the motion for an injunction, suit brought by the widow Cave against Marand the injunction be made perpetual on a celine Cavaillez, the plaintiff undertook to acfinal hearing. The plaintiff is without a full, quire rights in the plantation under Marceline complete, and adequate remedy at law, and Cavailhez, by the sheriff's deed, to the preju must resort to a court of equity to have his dice of the widow Cavé; and his possession, so rights determined and secured. far as it affected the latter, was the possession of Marceline Cavaillez, and the writ was prop erly issued and executed. It is provided as follows by the Civil Code of Louisiana (art. 2453): The thing claimed as the property of the claimant cannot be alienated pending the action, so as to prejudice his right. If judg ment be rendered for him, the case is consid

The prayer of the bill is, that the suit so brought by the widow Cavé be declared an absolute pullity, because there was no jurisdic tion in the court over the parties; that, in case said suit was properly brought between the parties thereto, it be decreed to have no force or effect against the plaintiff herein, he not

[124]

Although the present suit is one between two aliens, yet inasmuch as it is brought in the same Circuit Court in which the former decree was rendered, and to impeach that decree, we think that the court had jurisdiction. That being so, it had authority to make a decree on the merits.

ered as a sale of another's property and does appeared to be jurisdiction, and the plaintiff not prevent him from being put in possession cannot question it by means of this suit, when by virtue of such judgment.' the question is not raised by Marceline CavailAs the plaintiff was evicted and the planta-hez, who was the defendant in the former suit. tion was put into the possession of the widow Cavé, a court of equity cannot give the plaintiff any relief, until he has established his title [125] by an action at law. Under the jurisprudence of Louisiana, the claim of the plaintiff is a "third opposition." By the Code of Practice of Louisiana (art. 401), a third opposition is defined as “a demand brought by a person not The decree dismissing the bill absolutely originally a party in the suit, for the purpose must be so modified as to declare that it is withof arresting the execution of an order of seiz-out prejudice to an action at law, and, as so ure or judgment rendered in such suit, or to modified, it is affirmed, with costs. Horsburg regulate the effect of such seizure in what re- v. Baker, 26 U. S. 1 Pet. 232 [7: 125]: Barney lates to him." It is a suit at law, a short, sum-v. Baltimore City, 73 U. S. 6 Wall. 280 [18: mary proceeding, and not a formal one in chan cery. Code of Practice, art. 298; Van Norden v. Morton, 99 U. S. 378, 381 [25: 453, 455].

[126]

825]; Kendig v. Dean, 97 U. S. 423 [24: 10611; Rogers v. Durant, 106 U. S. 644 [27: 303]; Scott v. Neely, 140 Ú. S. 106, 117 [35: 358, 362].

CLINTON C. TRIPP, Piff. in Err..

V.

COMPANY ET AL.

It is well settled, in regard to land, that, when a suit is pending in regard to it, a person who purchases under the defendant pendente lite is subject to the operation of a writ of possession if one is finally issued on a judgment in the suit. Walden v. Bodley, 50 U. S. 9 How. THE SANTA ROSA STREET RAILROAD 34, 49 [13: 36. 42]; Terrell v. Allison, 88 U. S. 21 Wall. 289 [22: 634]; Tilton v. Cofield, 93 U. S. 163 [23: 8.8]; Warren County v. Marcy, 97 U. S. 96, 105 [24: 977, 980]; Union Trust Co. v. Southern Inland Nav. & Imp. Co. 130 U. S. 565, 570, 571 [32: 1043-10451; Mellen v. Moline Malleable Iron Works, 131 U. S. 352, 371 [33: 178, 181].

(See S. C. Reporter's ed. 126-130.)

Service of citation-leaving copy at dwelling

house-state laws as to service-case dismissed for want of service of citation-Federal question.

1. Where the only proof of the service of a cita

tion is an affidavit that notice of citation was given to defendants' attorneys by depositing in the postoffice a copy of said citation, postage paid, addressed to them at their respective places and giving the names and places, the proof of service is insufficient.

Service of a citation by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person who is a member or resident in the family, it seems, is sufficient.

its own process by the varying laws of the states and territories upon the subject, and actual notice, or notice directed by rule or special order, must be shown before it can treat parties as properly in court.

The fact that the plaintiff and Maxwell were mortgage creditors of Marceline Cavailhez, and that their mortgage was duly recorded in the mortgage office of the parish, before the suit brought by the widow Cavé was instituted, is of no consequence, so far as the present suit is concerned. If the rights of the plaintiff or those of Maxwell under that mortgage could not be affected by the decree made in the suit brought by the widow Cavé, because they were not made parties to that suit, the result is simply that the decree in that suit bad no effect 3. This court cannot be governed in the matter of upon their rights under the mortgage. But that fact has no bearing upon the matters Bought to be litigated in the present suit. The mortgage, if valid, still remains valid, and lawful proceedings can be had upon it, subject to such defenses as may be interposed in regard to it. If the title of the widow Cavé to the plantation, under the suit brought by her, is subject to the rights of the plaintiff under the mortgage executed by Marceline Cavailhez, this bill in the nature of a bill of review is not the proper mode of enforcing the rights under that mortgage. The widow Cave was not bound to make the plaintiff or Maxwell, as mortgage creditors of Marceline Cavailbez, parties to the suit she brought, and their rights as such creditors were not affected by the decree in that suit.

When a case has been upon the docket of this court over three years, and been reached for argument and submitted upon a brief filed for plaintiff in error, it is too late to assert jurisdiction over defendants in error, and where citation has not been properly served on them, the writ of error must be dismissed.

5. The decision of the Supreme Court of California that as no appeal was prosecuted from the final judgments of the court below, the order of that court denying the application to remove the cause to a Federal court was not open to review, and its judgment dismissing the appeal from the orders refusing to set aside the judgments of the court below, rest upon grounds of state procedure, and present no Federal question giving jurisdiction to this court.

[No. 197.]

As to the allegation in the bill that the court was without jurisdiction of the suit brought by the widow Cavé, because she alleged falsely therein that she was a citizen of France, when in fact she was a citizen of Louisiana, and thus Submitted March 9, 1892. Decided March 21, the court had no jurisdiction of the suit as between her and Marceline Cavailhez, that question cannot be raised and adjudicated in this suit. By the record of the former suit there

1892.

State of California, to review a judgment
ERROR to the Supreme Court of the

[128]

of that court dismissing appeals from orders of on the day of said service there was a regular
the Superior Court of the County of Sonoma, communication by mail between S. Francisco
California, denying motions to set aside orders and Santa Rosa."
of dismissal and orders denying an application
for removal of the case to the United States
Circuit Court. Dismissed.

The facts are stated in the opinion.
Mr. P. G. Galpin for plaintiff in error.
No counsel for defendant in error.

Mr. Chief Justice Fuller delivered the opin fon of the court:

The appearance of none of the defendants in error has been entered in this court, nor does the record disclose any notice of the pendency of the writ, or waiver thereof.

Assuming the sufficiency of the affidavit, and that it established what would be a proper serv ice under the laws of California, (Cal. Code Civ. Proc. $S 1012, 1013; 3 Deering, Codes and Statutes, 416), in repect of which we express no opinion, the question presents itself whether We gather from the record that this was an such a service of citation to this court can be action of ejectment commenced March 9, sustained. The statute provides that "the ad1881, in the Superior Court in and for the verse party shall have at least thirty days' nocounty of Sonoma, California, against some tice," (Rev. Stat. § 999); aud the citation is a one thousand defendants, of whom two or summons to bring him in, which, under subthree hundred, having filed separate answers division five of rule eight, must be served beto the complaint, were awarded separate trials, fore the return day. Service may be had upon which were set down for December 13, 1881, his attorney or counsel with like effect as upon and by the court continued until the 14th. On the party himself, but when counsel of record that day a motion by plaintiff for a continuance, is dead, it cannot be served on his personal on affidavit, was made and overruled, where- representative, nor even on his partner if not upon a petition and bond for the removal of regularly appearing on the record as counsel the cause to the Circuit Court of the United in the cause. Bacon v. Hart, 66 U. S. 1 Black, States for the Northern District of California 38 [17: 52]. No attorney or solicitor can [129] were filed by the plaintiff. This application, withdraw his name after he has once entered after argument and consideration, was denied December 15, 1881, as to each of the defendants who had obtained separate trials, on the ground that it was made too late, and the cases as to them, being called for trial, were severally dismissed for want of prosecution.

Upon the third of January, 1882, plaintiff filed motions to set aside the several orders of dismissal, and to vacate the orders denying the application for removal, and these motions were heard and denied on February 13, 1882. Plaintiff thereupon gave notice of appeal to the Supreme Court of California from the orders of the Superior Court made on February 13, and the appeals, having been prosecuted, were dismissed by that court on May 26, 1886, and to review that judgment this writ of error was sued out.

The Supreme Court held that plaintiff should have appealed from the judgments of the Superior Court dismissing the suit, and that had such appeal been taken the order of refusal to transfer to the Circuit Court of the United States might have been considered, but as there was no appeal from the final judgments the court could not review that order. The writ of error from this court was allowed February 24, 1888, by the chief justice of the State Su preme Court by whom a citation was signed. The only proof of service of this citation is an affidavit that notice of citation was given to defendants' attorneys, "by depositing in the post office at San Francisco, Cal., a copy of said citation, postage paid, addressed to said attorneys at their respective places, to wit: [Here follow names of the attorneys as residing at Santa Rosa], all of the county of Sonoma, on the 29th day of September, A. D. 1888; that

it upon the record, without the leave of the
court; and while his name continues there the
opposite party has a right to treat him as the
authorized attorney or solicitor and the service
of notice upon him is valid. United States v.
Curry, 47 U. S. 6 How. 106 [12: 363]. In
Fairfax v. Fairfax, 9 U. S. 5 Cranch, 19, 21
[3: 24, 25], where the defendant below inter-
married after the judgment and before the
service of the writ of error, the service of the
citation upon the husband was held sufficient.

The necessity of the actual issue and actual
service of citation, except in cases of appeals
allowed in open court, and in the absence of
equivalent notice or waiver, is reiterated in
many cases, while much liberality is exercised
in permitting service to be made during the
return term, or a new citation to be issued,
where the circumstances invoke the discretion
of the court. Hewitt v. Filbert, 116 U. S. 142
[29: 581]; Dayton v. Lash, 94 U. S. 112 [24: 33].

The citation may be waived by a general appearance, (Villabolos v. United States, 47 U. S. 6 How. 81, 90 [12: 352, 356]), or by the acceptance of service of a defective citation, (Bigler v. Waller, 79 U. S. 12 Wall. 142 [20: 260]), or by action equivalent to the acknowledgment of notice. Goodwin v. For, 120 U. S. 775 [30: 815].

But none of the cases give color to the view that the service or ackowledgment or waiver can be other than personal on or by the party or his attorney.

By the thirteenth equity rule it is provided that "the service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling house

NOTE. As to jurisdiction in the United States | to declare state law void as in conflict with state con-
Supreme Court, where Federal question arises, or stitution; to revise decrees of state courts as to con-
where are drawn in question statutes, Treaty, or Construction of state laws, see notes to Hart v. Lamphire,
stitution, see notes to Martin v. Hunter, 4: 97; Mat- 7: 679, and Commercial Bank of Cincinnati v. Buck-
thews v. Zane, 2:654, and Williams v. Norris, 6: 571. ingham, 12: 169.
As to jurisdiction of United States Supreme Court

Submitted March 15, 1892. Decided March 21, to make distraint and sale of the plaintiff's cat

[131]

county the complaint in the present case, pray-
ing injunctive relief against the collection of
the same taxes, and that the same officer, the
appellant herein, be restrained from selling his
cattle and property to satisfy said taxes. The
same objections are therein alleged-that he
was assessed for more property than he owned
in Routt county; that the valuation was too
great, and that the assessment and levy of the
taxes upon his property were invalid for vari
ous reasons alleged, some of which had not
been stated in the complaint filed in the former
action. He also averred other items of damage
which would result to him from a sale of his
cattle, and other alleged equities than those
previously mentioned.

"This complaint omits to mention several
facts stated in the former complaint, as the
quantity and value of land and the number
and value of horses owned by him in Routt
county in the year 1884.

"The only relief prayed in this bill is that the appellant and his deputies, etc., be temporarily restrained from distraining and selling any of his stock for the satisfaction of said taxes.

when a complainant in equity brings his suit, he
must present to the court all the grounds then
existing for its support. He is not at liberty
to present a portion of the grounds upon which
his claim for equitable relief depends in one
suit and, if that fail, to present the rest in an-
other action. The former adjudication is held
to be conclusive in a subsequent proceeding
between the same parties as to every matter
properly involved and which might have been
raised and determined in it.

Ruegger v. Indianapolis & St. L. R. Co. 103
Ill. 456; Kurtz v. Carr, 3 West. Rep. 863, 105
Ind. 574; Stark v. Starr, 94 U. S. 477 (24: 276).
"A copy of the complaint filed by said Haley
in the former suit was set out in the answer in
this cause, showing the identity of the causes
of action, of the relief sought, of the parties,
and that they prosecuted and defended in the
same character; and it is therein averred that
this court, by its opinion and judgment of April
30th, 1887, pronounced in that case, held the
said assessment to be valid, and that the in-
junction proceedings could not be maintained,
which former adjudication is alleged to be a
complete bar to the present action. This
"Upon the filing of this bill an injunction answer stands untraversed; and the fact, there-
was ordered to issue according to the prayer fore, of a former adjudication of the same sub-
thereof. The appellant answered July 25th, ject-matter between the same parties is decisive
averring, among other things, that the validity not only of this appeal, but of this action. It
of the taxes complained of had been fully ad- appears from the record that there was a full
judicated and established in a prior suit be- and complete adjudication in the original suit
tween the same parties, involving the same is of the validity of these taxes, and that the au-
sues mentioned in the injunction suit instituted thority of the appellant as treasurer of Routt
in the district court of Clear Creek county, county, to enforce their collection was therein
setting out the complaint filed therein by said sustained. There was, therefore, no warrant
Haley, the steps taken therein, the judgment of law for granting this second injunction to
of this court sustaining the validity of the assess-restrain him from the performance of that
ment, and interposing the former adjudication
as a complete bar to this action.

"Upon the filing of this answer appellant moved to dissolve the temporary injunction. This motion was heard by the District Judge at chambers on the 27th day of July upon the pleadings and proofs of the respective parties, and denied; from which order denying the application to dissolve this appeal is prosecuted. Other facts are stated in the opinion."

BECK, Ch. J.:

duty.

"The point so strongly insisted upon by counsel for appellee that the subject-matter of the original injunction proceedings and the judg ment of this court therein could not be legally interposed as an estoppel to this second suit for the reason that the same constituted new matter, and was therefore inadmissible under the rules of chancery practice, is without merit and untenable. The authorities cited in support of the proposition announce no such doctrine. They refer rather to cases where the new matter is not responsive to the allegations of the bill and to new matter which is alleged by way of confession and avoidance, as where the alleged equities are admitted, but other facts are interposed by way of defense thereto.

"The record discloses that the appellee, Ha-
ley has instituted and prosecuted two injunc-
tion suits against the appellant for the accom-
plishment of the same purpose, to wit, to
prevent him from enforcing, as county treasurer
of Routt county, the collection of taxes assessed "The plea of res judicata filed herein is re-
against the personal property of the appellee sponsive to the complaint. It concedes no
therein for the year 1884 by distraint and sale equities whatever in the allegations of the com-
of a portion of the same. The first suit was plaint, but is an unequivocal denial of all the
brought and prosecuted in the district court of propositions upon which the complainant's
Clear Creek county and the present action in equities rests. In effect it is a denial of the
the district court of Pitkin county. The com- equities set up both in this and in the former
plaint in the former case stated substantially complaint, and it alleges that the whole sub-
the same grounds for enjoining the collection ject-matter thereof was adjudicated in the for-
of these taxes as that filed in the latter case, the mer action, wherein it was finally determined
principal ground being the invalidity of the that the complainant was not entitled to equita-
assessment. Additional grounds for equitable ble or injunctive relief. This plea, untrav-
relief are alleged in the present complaint, but ersed, leaves nothing for the court to try. The
they all existed at the time of the former ac-equities of the complaint are not only denied
tion, and it is not even alleged that they were
unknown to the appellee at the time the original
suit was pending.

"The doctrine of the authorities is that,

but disproved, leaving nothing for the injunc-
tion to rest upon. 2 High, Injunctions, title,
"Dissolution," §§ 1467 to 1474, and § 1586, and
authorities cited.

[132]