municipal taxes under its charter. firmed.

Af

was heard June 10, 1901, and the decree below was affirmed October 21, 1901. 49 C. C. A. 455, 111 Fed. 561. Thereupon complainant, appellant in that court, prosecuted an appeal from its decree to this court, and the case was docketed here January 13, 1902, and is now No. 221.

Also an appeal from the United States Circuit Court of Appeals for the Sixth Circuit to review a decree which affirmed a decree of the Circuit Court for the Western District of Tennessee denying the claim of a bank to exemption from municipal taxes under its charter. Reversed, with direc-on printed briefs. tions to dismiss the appeal from, and writ of error to, the Circuit Court.

See case number 221 below, 49 C. C. A. 455, 111 Fed. 561.

Statement by Mr. Chief Justice Fuller: The Union & Planters' Bank of Memphis was incorporated under a charter granted by the general assembly of the state of Tennessee in 1858, which contained the following provision: "That said company shall pay an annual tax of of 1 per cent on each share of stock subscribed, which shall be in lieu of all other taxes." The corporation was located in the city of Memphis, Shelby county, Tennessee, and that city, pursuant to an act of the legislature of Tennessee, assessed an ad valorem tax for the year 1899, for municipal purposes, on the capital stock of the bank. The bank thereupon filed its bill in the circuit court of the United States for the western division of the western district of Tennessee, in which

Both cases were submitted, as one case,

Mr. William H. Carroll submitted the cause for appellant. Mr. Tim E. Cooper was with him on the brief:

The mere fact that the demand in this mands in the adjudged cases were for taxes case is for a tax for one year, and the defor other years, does not prevent the operation of the thing adjudged, if, in the prior cases, the question of exemption was necessarily presented and determined upon idenof exemption is now claimed. tically the same facts upon which the right

New Orleans v. Citizens' Bank, 167 U. S. Bank of Kentucky v. Stone, 88 Fed. 383; 371, 42 L. ed. 202, 17 Sup. Ct. Rep. 905.

The Tennessee cases hold that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, that that matter is forever concluded between the parties and their privies, where the judgment is final.

498; Gray v. Faris, 7 Yerg. 161; King v. Estill v. Taul, 2 Yerg. 467, 24 Am. Dec.

Lea, 524; Peak v. Ligon, 10 Yerg. 469;
Westbrook v. Thompson, 104 Tenn. 363, 58
52 L. R. A. 894, 59 S. W. 1020.
S. W. 223; Sale v. Eichberg, 105 Tenn. 333,

it was alleged that the law under which the assessment was made impaired the obligation of the contract created by the above-Vaughn, 8 Yerg. 59, 29 Am. Dec. 104; quoted clause of the charter. The bill fur-Hodges v. Bauchman, 8 Yerg. 186; Elrod v. ther averred that in a former litigation be- Lancaster, 2 Head, 574, 75 Am. Dec. 749; tween the bank and the city, wherein. it Warwick v. Underwood, 3 Head, 238, 75 Am. Dec. 767; Brewster v. Galloway, 4 Lea, 567; was sought to enforce a municipal assessment of taxes on the capital stock of the McClanahan v. Stovall, 6 Lea, 505; Roper v. Rowlett, 7 Lea, 321; Parkes v. Clift, 9 bank for the years 1888, 1889, and 1890, it was adjudged by the supreme court of Tennessee that, by the provision aforesaid, the capital stock of the corporation was exempt from all general taxation. The record and judgment in that suit were set out in full, and pleaded as a final judicial determination of the bank's exemption from the pay; ment of ad valorem taxes on its capital stock; and it was averred that the judgment so pleaded was based on the identical claim of exemption now asserted, and on identically the same facts and conditions under which this assessment was made.

The prayer was that the assessment be canceled, and complainant be declared to be exempt from the payment to the city of ad valorem taxes on its capital stock. [73] Defendants demurred, and the demurrer was sustained and the bill dismissed, November 6, 1900, whereupon complainant prayed and perfected an appeal to, and also took a writ of error from, the United States circuit court of appeals for the sixth circuit, and the case was docketed there on or about November 27, 1900.

On February 11, 1901, complainant prayed, and was granted an appeal from the decree of the circuit court directly to this court, the record was filed here, March 23, 1901, and the case is now No. 67.

The case in the circuit court of appeals 189 U. S. U. S., Book 47.

different, a decision by a court of compe

Though the form and causes of action be

fact or question in the one action is conclutent jurisdiction in respect to any essential sive between the parties in all subsequent

actions.

Southern P. R. Co. v. United States, 168

U. S. 5, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; Forsyth v. Hammond, 166 U. S. 506, 41 L. ed. 1095, 17 Sup. Ct. Rep. 665.

Mr. Luke E. Wright submitted the cause for appellee. Mr. John H. Watkins was with him on the brief:

The precise point involved herein having been determined by both this court and the state court, there is no longer any Federal or other question as to the taxability of apas contradistinpellant's capital stock guished from the shares of stock.

Shelby County v. Union & P. Bank, 161 U. S. 150, 40 L. ed. 652, 16 Sup. Ct. Rep. 558; Union & P. Bank v. Memphis, 101 Tenn. 168, 46 S. W. 557.

There is such a well-defined and unbroken line of decisions in Tennessee that judgments and decrees in tax cases are limited to the taxes actually involved that, as a

45

713

local question, that proposition is no longer | Dist. v. Bradley, 164 U. S. 112, 41 L. ed. debatable.

State v. Bank of Commerce, 95 Tenn. 221, 31 S. W. 993; Union & P. Bank v. Memphis, 101 Tenn. 167, 46 S. W. 557; Buchanan v. Springer (Tenn. Ch. App.) 35 S. W. 774. The local law as to the effect of tax judgments will be followed by this court in cases involving the construction of a state statute or a former state judgment.

369, 17 Sup. Ct. Rep. 56; First Nat. Bank v. Chehalis County, 166 U. S. 440, 41 L. ed. 1069, 17 Sup. Ct. Rep. 629; Wilson v. North Carolina, 169 U. S. 586, 42 L. ed. 865, 18 Sup. Ct. Rep. 435; Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130; Merchants' & Mfrs. Nat. Bank v. Pennsylvania, 167 U. S. 461, 42 L. ed. 236, 17 Sup. Ct. Rep. 829.

Mr. Chief Justice Fuller delivered the opinion of the court:

Amer

Bergman v. Bly, 13 C. C. A. 319, 27 U. S. App. 650, 66 Fed. 43; Lavin v. Emigrant Industrial Sav. Bank, 18 Blatchf. 1, 1 Fed. 650; Shelby v. Guy, 11 Wheat. 367, 6 L. ed. Diversity of citizenship did not exist, and 496; Green v. Neal, 6 Pet. 299, 8 L. ed. 402; the jurisdiction of the circuit court rested Morley v. Lake Shore & M. S. R. Co. 146 U. solely on the ground that the cause of acS. 166, 36 L. ed. 928, 13 Sup. Ct. Rep. 54; tion arose under the Constitution of the Fidelity Ins. & S. D. Co. v. Shenandoah Iron United States. The appeal lay directly to Co. 42 Fed. 376; Tioga R. Co. v. Blossburg this court under § 5 of the judiciary act of & C. R. Co. 20 Wall. 137, 22 L. ed. 331; March 3, 1891 (26 Stat. at L. 826, chap. Union Nat. Bank v. Bank of Kansas City, 517, U. S. Comp. Stat. 1901, p. 547), and 136 U. S. 235, 34 L. ed. 346, 10 Sup. Ct. Rep. not to the circuit court of appeals. 1013; Leighton v. Young, 18 L. R. A. 266, 3 ican Sugar Ref. Co. v. New Orleans, 181 U. C. C. A. 176, 10 U. S. App. 298, 52 Fed. 439; S. 277, 45 L. ed. 859, 21 Sup. Ct. Rep. 646. Sanford v. Poe, 16 C. C. A. 305, 37 U. S. Nevertheless, an appeal having been proseApp. 378, 69 Fed. 546; Bauserman v. Blunt, cuted to the latter court, and having there 147 U. S. 647, 37 L. ed. 316, 13 Sup. Ct. gone to decree, an appeal was allowed to Rep. 466; Thompson v. Searcy County, 6 C. this court because the judgment was not C. A. 674, 12 U. S. App. 618, 57 Fed. 1030; made final in that court by § 6 of the act. Luther v. Borden, 7 How. 1, 12 L. ed. 581; But the case being here, and the jurisdicLavin v. Emigrant Industrial Sav. Bank, tion of the circuit court having *depended [74] 18 Blatchf. 1, 1 Fed. 641; Christy v. Prid- on the sole ground that it arose under the geon, 4 Wall. 196, 18 L. ed. 322; Leffingwell Constitution, we are constrained to reverse v. Warren, 2 Black, 603, 17 L. ed. 262; the decree of the circuit court of appeals, Sioux City Terminal R. & Ware-house Co. v. not on the merits, but by reason of the want Trust Co. of N. 4. 27 C. C. A. 73, 49 U. S. of jurisdiction in that court. If this were App. 523, 82 Fed. 124; Hill v. Hite, 29 C. not so, the right to two appeals would exist C. A. 549, 56 U. S. App. 403, 85 Fed. 268; in every similar case, notwithstanding, as Union P. R. Co. v. Reed, 25 C. C. A. 389, we have repeatedly held, that such was not 49 U. S. App. 233, 80 Fed. 234; Rice v. Ad- the intention of the act. Robinson v. Caldler-Goldman Commission Co. 18 C. C. A. well, 165 U. S. 359, 41 L. ed. 745, 17 Sup. 15, 36 U. S. App. 266, 71 Fed. 151; Hodg- Ct. Rep. 343; Loeb v. Columbia Twp. 179 don v. Burleigh, 4 Fed. 121; Duden v. Mal-U. S. 472, 45 L. ed. 280, 21 Sup. Ct. Rep. o. 43 Fed. 407; Sutherland-Innes Co. v. Evart, 30 C. C. A. 305, 58 U. S. App. 335, 86

Fed. 597.

Franklin County Ct. v. Louisville & N. R. Co. 84 Ky. 65; Olcott v. Fond du Lac County, 16 Wall. 678, 21 L. ed. 382.

The present law, as announced by this court and the supreme court of Tennessee, is controlling in this case.

Lavin v. Emigrant Industrial Sav. Bank, 18 Blatchf. 1, 1 Fed. 650; Tomes v. Barney, 35 Fed. 115; Bank of Kentucky v. Stone, 88 Fed. 397; Bauserman v. Blunt, 147 U. S. 647, 37 L. ed. 316, 13 Sup. Ct. Rep. 466; Morley v. Lake Shore & M. S. R. Co. 146 U. S. 162, 36 L. ed. 925, 13 Sup. Ct. Rep. 54; Miller v. Swann, 150 U. S. 132, sub nom. Miller v. Anderson, 37 L. ed. 1028, 14 Sup. Ct. Rep. 52; Baltimore Traction Co. v. Bal timore Belt R. Co. 151 U. S. 137, 38 L. ed. 102, 14 Sup. Ct. Rep. 294; Marchant v. Pennsylvania K. Co. 153 U. S. 380, 38 L. ed. 751, 14 Sup. Ct. Rep. 894; Fallbrook Irrig.

174; American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Rep. 646.

In Pullman's Palace Car Co. v. Central Transp. Co. 171 U. S. 138, 43 L. ed. 108, 18 Sup. Ct. Rep. 808, an appeal was taken to this court and also to the circuit court of appeals, and a motion was made in each court to dismiss the appeal, whereupon, by reason of the circumstances, we granted a writ of certiorari, and brought up the record from the latter court before it had proceeded to decree. The question as to which was the correct route to reach this court became immaterial, and we disposed of the case on its merits. But in the present case the circuit court of appeals went to decree, and we are obliged to deal with the appeal therefrom, in doing which the jurisdiction of that court necessarily comes under review.

The questions on the merits are, however, presented for disposition on the direct appeal from the circuit court.

In Shelby County v. Union & Planters' Bank (1895) 161 U. S. 149, 40 L. ed. 650, 16 Sup. Ct. Rep. 558, it was decided that the capital stock of the bank was not exempt from ad valorem taxation by the pro

vision of the charter in question, and was | Watertown, 153 U. S. 671, 38 L. ed. 861, 14 liable to be taxed as the state_might deter- Sup. Ct. Rep. 947; Chicago & A. R. Co. v. mine. Bank of Commerce v. Tennessee use Wiggins Ferry Co. 108 U. S. 18, 27 L. ed. of Memphis, 161 U. S. 134, 40 L. ed. 645, 636, 1 Sup. Ct. Rep. 614, 617; Rev. Stat. § 905 (U. S. Comp. Stat. 1901, p. 677). 16 Sup. Ct. Rep. 456.

The litigation over the alleged exemption has been protracted, and many decisions have been rendered in this court and in the highest tribunal of Tennessee in respect of it. They are *reviewed by Lurton, J., in the [76] circuit court of appeals, 49 C. C. A. 455, 111 Fed. 561.

Decree of the Circuit Court in No. 67 affirmed.

Decree of the Circuit Court of Appeals in No. 221 reversed, with a direction to dismiss the appeal and writ of error.

But the bank objects that, notwithstanding this court has thus held that the exemption asserted does not exist, it must, nevertheless, be recognized in this case as existing, because it was so determined by the judgment pleaded as res judicata. The judgment thus relied on as a bar to this assessment is reported in Memphis v. Union & Planters' Bank (1892) 91 Tenn. 546, 19 S. W. 758, which involved the assessment of municipal taxes for the years 1887 to 1891 inclusive, on the capital stock of the bank, and a privilege tax for the years 1889, 1890, [75]and 1891. *The supreme court of Tennessee there held, in deference to the supposed scope of the decisions of this court in Far-MEXICAN CENTRAL RAILWAY COMrington v. Tennessee (1877) 95 U. S. 679, 24 L. ed. 558, and in Bank of Commerce v. Tennessee (1881) 104 U. S. 493, 26 L. ed. 810, that the bank was exempted by the charter from being assessed by the state, county, or municipality for any taxes except as specified.

In Union & Planters' Bank v. Memphis (1898) 101 Tenn. 154, 46 S. W. 557, the conclusion announced in Shelby County v. Union & Planters' Bank, 161 U. S. 149, 40 L. ed. 650, 16 Sup. Ct. Rep. 558, was followed, and it was held to be the settled rule in Tennessee that the plea of res judicata is only applicable to the taxes actually in litigation, and is not conclusive in respect to taxes assessed for other and subsequent State v. Bank of Commerce, 95 years. Tenn. 231. 31 S. W. 993.

PANY (Limited), Plff. in Err.,

J. M. DUTHIE.

(See S. C. Reporter's ed. 76-78.)

Pleading-amendment after verdict and judgment.

An amendment of plaintiff's petition, after verdict and judgment thereon, with no further proceedings taken, by inserting the words, "and is a citizen of said state and of the United States of America," after the allegation therein that "plaintiff resides in El Paso, in El Paso county, state of Texas," may be allowed by a circuit court of the United States, under U. S. Rev. Stat. § 964 (U. S. Comp. Stat. 1901, p. 697), giving the trial court the right at any time to permit either of the parties to amend any defect in process or pleadings, upon such conditions as it shall prescribe.

[No. 336.]

13, 1903.

As the judgment relied on as res judicata was not so regarded in Shelby County v. Union & Planters' Bank, it could not be properly so regarded in the present case; but, apart from that, it is enough that in Tennessee the doctrine of res judicata is Submitted March 23, 1903. not applicable to taxes for years other than those under consideration in the particular case, inasmuch as what effect a judgment of a state court shall have as res judicata is a question of state or local law, and the taxes involved in this suit are taxes for years other than those involved in the prior adjudication. Phonix F. & M. Ins. Co. v. Tennessee, 161 U. S. 174, 40 L. ed. 660, 16 Sup. Ct. Rep. 471.

In New Orleans v. Citizens' Bank, 167 U. S. 371, 42 L. ed. 202, 17 Sup. Ct. Rep. 905, referred to by appellant's counsel, no claim was made that the judgment relied on would not have been res judicata in the state courts, and attention was particularly called to the fact that the rule in Louisiana was in accord with the conception of res judicata expounded in that case.

Decided April

N ERROR to the Circuit Court of the

United States for the Western District of Texas wherein is certified the question of that court's jurisdiction to permit an amendment to the petition after verdict and judgment, and to retain the judgment after such amendment. Judgment affirmed.

The facts are stated in the opinion.
Messrs. Aldis B. Browne, Alexander
Britton, and Eben Richards submitted
the cause for plaintiff in error:

The verdict found upon pleadings which are substantially defective is itself defective, and judgment entered thereon is void.

Garland v. Davis, 4 How. 131, 11 L. ed. 907; Barnes v. Williams, 11 Wheat. 415, 6 L. ed. 508.

After the verdict and judgment entered As the judgment pleaded had no force or effect in the Tennessee state courts other thereon, the trial court should not have althan as a bar to the identical taxes litigat-lowed plaintiff to amend his pleadings by ined in the suit, the courts of the United serting the necessary jurisdictional averStates can accord it no greater efficacy. ments therein, without first setting aside Cooper v. Newell, 173 U. S. 555, 43 L. ed. the verdict and judgment and granting a 808, 19 Sup. Ct. Rep. 506; Metcalf v. new trial.

715

Smith v. Jackson ex dem. Allyn, 1 Paine, 486, Fed. Cas. No. 13,065; Robertson v. Cease, 97 U. S. 646, 24 L. ed. 1057; Halsted v. Buster, 119 U. S. 341, 30 L. ed. 462, 7 Sup. Ct. Rep. 276; Chapman v. Barney, 129 U. S. 677, 32 L. ed. 800, 9 Sup. Ct. Rep. 426; Denny v. Pironi, 141 U. S. 121, 35 L. ed. 657, 11 Sup. Ct. Rep. 966; Cooper v. Newell, 155 U. S. 532, 39 L. ed. 249, 15 Sup. Ct. Rep. 355. See also Brown v. Keene, 8 Pet. 112, 8 L. ed. 885; Continental L. Ins. Co. v. Rhoads, 119 U. S. 237, 30 L. ed. 380, 7 Sup. Ct. Rep. 193; Menard v. Goggan, 121 U. S. 253, 30 L. ed. 914, 7 Sup. Ct. Rep. 873; Wolfe v. Hartford L. & Annuity Ins. Co. 148 U. S. 389, 37 L. ed. 493, 13 Sup. Ct.. Rep. 602; Horne v. George H. Hammond Co. 155 U. S. 393, 39 L. ed. 197, 15 Sup. Ct. Rep. 167; Bargh v. Page, 4 McLean, 10, Fed. Cas. No. 980.

By the practice conformity act of June 1, 1872, U. S. Rev. Stat. § 914, the specific provisions of the state statutes in this respect are controlling.

V.

Glenn v. Sumner, 132 U. S. 152. 33 L. ed. 301, 10 Sup. Ct. Rep. 41; Henderson Louisville & N. R. Co. 123 U. S. 61, 31 L. ed. 92, 8 Sup. Ct. Rep. 60; Phillips & C. Constr. Co. v. Seymour, 91 U. S. 646, 23 L. ed. 341; Atlantic & P. R. Co. v. Laird, 164 U. S. 393, 41 L. ed. 485, 17 Sup. Ct. Rep. 120; Mack v. Porter, 18 C. C. A. 527, 25 U. S. App. 595, 72 Fed. 236. See also People's Suc. Bank & Trust Co. v. Batchelder Egg Case Co. 2 C. C. A. 126, 4 U. S. App. 603, 51 Fed. 130; Post v. Wise Twp. 101 Fed. 204; Wolf v. Cook, 40 Fed. 432.

Amendments to pleadings under the Texas statute and practice are not allowable after verdict and judgment, except that, after ar rest of judgment or new trial granted, the court may allow such amendment as if no trial had been had or judgment reached.

Petty v. Lang, 81 Tex. 238, 16 S. W. 999; Heflin v. Burns, 70 Tex. 347, 8 S. W. 48; Missouri P. R. Co. v. Howe, 4 Tex. App. Civ. Cas. (Willson) § 197, p. 296.

Mr. Leigh Clark submitted the cause for defendant in error:

Judgments are under the control of the court where entered, until the close of the

term.

Bamberger v. Terry, 103 U. S. 40, 26 L. ed. 317.

Certain amendments will be permitted at any stage of the case, so as to bring in an essential party or to aver citizenship.

Fisher v. Rutherford, Baldw. 188, Fed. Cas. No. 4,823; Hilliard v. Brevoort, 4 McLean, 24, Fed. Cas. No. 6,505.

The trial court did not err in permitting the plaintiff to amend his original and first amended original petitions in said cause, after judgment rendered, at the same term of court.

The Tremolo Patent, 23 Wall. 518, sub nom. Tremaine v. Hitchcock, 23 L. ed. 97; Maddox v. Thorn, 8 C. C. A. 574, 23 U. S. App. 189, 60 Fed. 217; Fitchburg R. Co. v. Nichols, 29 C. C. A. 464, 50 U. S. App. 280, 85 Fed. 869.

Where the laws of the state and those of the United States conflict, the laws of the latter govern.

Cooley, Const. L. p. 32; Phelps v. Oaks, 117 U. S. 236, 29 L. ed. 888, 6 Sup. Ct. Rep. 714; Southern P. Co. v. Denton, 146 U. S. 202, 36 L. ed. 943, 13 Sup. Ct. Rep. 44; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. ed. 898.

Mr. Chief Justice Fuller delivered the opinion of the court:

66

re

damages for personal injuries in the circuit Duthie brought suit for the recovery of court of the United States for the western district of Texas against the Mexican Central Railway Company, Limited, and in his sides in El Paso, in El Paso county, state original complaint averred that he of Texas, *in the western district of said [77] state," and that defendant was a citizen of the state of Massachusetts. The cause was tried before a jury, and resulted in a verdict and judgment thereon April 10, 1902. The record shows "that no further proceedings were had in said cause after the entry of said judgment until, to wit, the 17th day of April, 1902, on which day plaintiff filed his motion asking leave to amend his petition," to the effect "that leave be granted him to now amend his said original and first amended petition by inserting therein the following: 'And is a citizen of said state and of the United States of America,' after the allegation made in said pleading 'that plaintiff resides in El Paso, in El Paso county, state of Texas.'" In support of the motion plaintiff stated under oath "that he is now and was at the date of the filing of his original petition herein, and was on the 22d day of July, 1901, the date of his injuries, a bona fide citizen of the United Mexican C. R. Co. v. Pinkney, 149 U. S. States of America and of the state of Texas." 201, 37 L. ed. 702, 13 Sup. Ct. Rep. 859; The court granted leave to so amend, and Chapman v. Barney, 129 U. S. 677, 32 L. ed. defendant excepted. Thereupon defendant 800, 9 Sup. Ct. Rep. 426: Chirac v. Rein-applied to the court to certify to this court icker, 11 Wheat. 302, 6 L. ed. 479: Murphy the question of jurisdiction to amend, and v. Stewart, 2 How. 284, 11 L. ed. 269; Spen- to retain the judgment after such amendcer v. Lapsley, 20 How. 264, 15 L. ed. 902. ment, and a certificate was accordingly And when such amendment is permitted, the court must, in its discretion, determine whether any submission which had been made ought to be vacated.

1 Black, Judgm. § 153.

Mere matters of procedure, such as the granting or refusing motions for new trial, and questions respecting amendments to the pleadings, are purely discretionary matters for the consideration of the trial court; and unless there has been gross abuse of that discretion they are not reviewable in this court on writ of error.

granted.

If the complaint or petition had remained as it was originally framed, and the case had then been carried to the circuit court

Bankruptcy preferences by payments for v. Wyman, 55 L. R. A. 349, 49 C. C. A. 574,

Submitted January 12, 1903. Decided April 52 C. C. A. 33, 114 Fed. 85; P. S. Morey Mercantile Co. v. Schiffer, 52 C. C. A. 249,