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by the respondent had not been waived; 18 or because the court had no power to grant the relief,14 or by consent before a hearing, 15 even, it has been held, when it provides that each party shall pay his own costs; 16 or by the former English practice, if it had not been signed and enrolled, although it could then be insisted on by answer as a good defense.17 Nor does a judgment against the plaintiff upon his default have that effect.18

A decree upon a bill taken as confessed concludes the defendant in another suit,19 and the failure of a party to offer evidence upon an issue does not make the adjudication less conclusive against him.20 The fact that a writ of error was dismissed by the appellate court without a decision there upon the merits does not make the decision below the less conclusive.21 And where a bill was dismissed for want of equity as well as for technical objections to the same, the decree was res adjudicata to a subsequent suit in another court where such objections were not recognized.22 A dismissal in equity because the complainant has

18 Speckart v. Schmidt, 190 Fed. 499.

14 Murray v. City of Pocatello, 226 U. S. 318, 57 L. ed. 239.

15 Marshall v. Otto, 59 Fed. 249. 16 Rincon Water & Power Co. v. Anaheim Union Water Co., 115 Fed. 543.

17 Anon., 3 Atk. 809; Story's Eq. Pl., § 790.

18 Gabrielson v. Waydell, 67 Fed. 342.

19 Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 39 L. ed. 859; Reedy v. Western El. Co., C. C. A., 83 Fed. 709; Thompson v. Wooster, 114 U. S. 104, 111, 112, 29 L. ed. 105, 107, 108; Ogilvie v. Herne, 13 Ves. 563. Where, in an action on contract, defendant pleaded a counterclaim, to which plaintiff replied by plea in abatement, alleging another suit pending between the same parties in the federal court on the counterclaim, which plea was clearly invalid, and on the trial defendant failed to ap

pear, whereupon evidence was introduced by plaintiff to rebut the merits of the counterclaim, but no evidence was given to sustain the plea in abatement; held, that a judgment dismissing the counterclaim would not be presumed to have been based on the plea of abatement, but was on the merits, and therefore was res adjudicata. Groton Bridge & Mfg. Co. v. Clark Pressed Brick Co., C. C. A., 126 Fed. 552.

20 Confectioners' Mach. & Mfg. Co. v. Racine Eng. & Mach. Co., 163 Fed. 914; Delaware, L. & W. R. Co. v. Troxell, C. C. A., 200 Fed. 44.

21 Johnson v. Herold, 161 Fed. 593.

22 Venner v. Chicago City Ry. Co., 195 Fed. 788. Where the court had no power to grant relief, the judgment was not res adjudicata because, in its opinion, it expressed its views against the complainant upon the merits.

an adequate remedy at law, is not a bar to any action or defense at law.23 A judgment dismissing an action upon plaintiff's refusal to amend is a judgment upon the merits.24 A decree sustaining a demurrer to a bill is a bar to a subsequent bill between the same parties involving the same subject-matter unless the bill is dismissed without prejudice; 25 and a final decree overruling a demurrer operates as an estoppel upon the defendant.26

Where a decree of dismissal does not disclose the ground, in the absence of a State statute upon the subject, the presumption is that the dismissal was upon the merits; but this is not conclusive; and when the decree is pleaded in bar of a subsequent suit, the plaintiff may plead facts showing that it was not.27

§ 186n. Effect as res adjudicata of decisions upon criminal prosecutions. A judgment of acquittal upon,1 or for dismissal upon the merits of 2 an indictment is a bar to a suit by the United States to recover a penalty for the same defense, or it has been said, to recover duties charged to be owed because of a fraud which had been pleaded in the indictment, but not, it seems, to a civil suit to recover damages; 5 or an injunction upon a charge of the same facts.6

A

§ 1860. Direct and collateral attacks upon judgment. direct attack upon a judgment or decree, may be made by a mo

23 Sperry & Hutchinson Co. v. City of Tacoma, 199 Fed. 853.

24 Lindsley v. Union Silver Star Min. Co., C. C. A., 115 Fed. 46. 25 Northern Pac. Ry. Co. V. Slaght, 205 U. S. 122, 51 L. ed. 738; Messinger v. New Eng. M. L. I. Co., 59 Fed. 416; Bradford Belting Co. v. Kisinger-Ison Co., C. C. A., 113 Fed. 811. Cf. Lindsley v. Union Silver Star Min. Co., C. C. A., 115 Fed. 46; Ohio River R. Co. v. Fisher, C. C. A., 115 Fed. 929; Sperry & Hutchinson Co. v. City of Tacoma, 199 Fed. 853.

26 Fuller v. Hamilton Co., 53 Fed. 411.

27 Stratton v. Essex County Park Commission, 164 Fed. 901.

§ 186n. 1 Coffey v. U. S., 116 U.

S. 442, 29 L. ed. 686.

2 U. S. v. Salem, 244 Fed. 296.

3 Coffey v. U. S., 116 U. S. 442, 29 L. ed. 686. Cf. U. S. v. Oregon C Co., 103 Fed. 549. But see United States v. Dwight Mfg. Co., 213 Fed. 522.

4 U. S. v. Salem, 244 Fed. 296.

5 Stone v. U. S., 167 U. S. 178, 42 L. ed. 127. See Am. Molting Co. v. Keitel, C. C. A., 209 Fed. 351. As to the rule concerning judgments of the courts of the Philippines, see Chantangeo v. Ababoa, 218 U. S. 476, 54 L. ed. 1116.

6 U. S. v. Donaldson-Schultz Co., C. C. A., 148 Fed. 581; reversing, 142 Fed. 300.

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tion in the court where it was entered to set the same aside; 1 by writ of error coram nobis in the same court,2 or by bill of review in the same court; by a writ of error coram vobis or appeal or by one of the extraordinary writs in the court of review; by a bill in the nature of a bill of review,5 a bill to impeach the decree on account of fraud, accident or mistake, or a bill to suspend or avoid its operation. The judgment or decree can not be attacked collaterally unless the court had no jurisdiction over the person of the defendant or of the subject-matter of the suit,8 or the defendant was denied a hearing or whenever the proceedings were not due process of law. 8a A judgment or decree can be attacked collaterally when the court had no jurisdiction of the subject-matter.9

A judgment or decree of a court of the United States cannot be attacked collaterally because the record does not show the necessary difference of citizenship between the parties to the controversy or that a Federal question was involved; 10 not even when a motion for a remand has been erroneously denied.11 In the latter case, the only remedy, if any, is an appeal or writ of error taken in due time.12 A judgment or decree cannot be attacked collaterally for fraud.18

§ 1860. 1 See infra, §§ 443 to 445, 481.

2 Infra, § 481.

3 Infra, ch. XXXVI.

4 Infra, §§ 456, 457, 460.

5 Infra, § 450.

6 Pac. R. Co. of Mo. v. Mo. Pac. Ry. Co., 111 U. S. 505, 28 L. ed. 498. Infra, § 451. See Carpenter v. M. J. & M. & M. Consol., C. C. A., 212 Fed. 868.

7 Infra, § 452.

8 Peninsular Iron Co. v. Els, 68 Fed. 24, 35, 36; Christmas v. Russell, 5 Wall. 290, 305, 18 L. ed. 475, 479; Mawell v. Stewart, 22 Wall. 77, 22 L. ed. 564; Snyder v. Upper Elk Coal Co., C. C. A., 228 Fed. 21.

8a Windsor v. McVeigh, 93 U. S. 274, 23 L. ed. 914. Supra, § 186.

9 Rose v. Himely, 4 Craneh 241, 269; Thompson v. Whitman, 18 Wal

lace 457; Andrews v. Andrews, 188 U. S. 14; Fordham v. Hicks, 240 Fed. 751.

10 Kempe's Lessee v. Kennedy, 5 Cranch 173, 185, 3 L. ed. 70, 73; Skillern's Ex'rs v. May's Ex'rs, 6 Cranch 267, 3 L. ed. 220; Cameron v. McRoberts, 3 Wheat. 591, 4 L. ed. 467; Des Moines Nav. Co. v. Iowa H. Co., 123 U. S. 552, 557, 559, 31 L. ed. 202, 204, 205; Dowell v. Applegate, 152 U. S. 327, 337-341, 38 L. ed. 463, 467, 468. Pullman's P. C. Co. v. Washburn, 66 Fed. 790. Cf. Empire State-Idaho Min. & Developing Co. v. Hanley, 205 U. S. 225, 51 L. ed. 770.

11 Knox v. Lewis V. Alwood, 228 Fed. 753; Mellon v. St. Louis Union Trust Co., C. C. A., 240 Fed. 359. 12 But see infra, § 558. 13 Peninsular Iron Co. v. Eels, 68

Under special circumstances it was held: that an ignorant party who was under duress when sued was not estopped by the judgment against him.14

Where the defendant has objected in the original court to the jurisdiction over his person and that court has found against him, the judgment of another court that the decree in the first suit is binding upon him is due process of law. 16 That it is the duty of another court to follow the same has been held by a Circuit Court of Appeals.16

Where the

§ 186p. Matters concluded by adjudication. parties and the property in dispute are the same and the plaintiff claims the same right as in the former suit, the prior adjudication is conclusive both as to all questions which were actually decided and as to all which might have been considered. But

Fed. 24, 35, 36; Christmas v. Russell, 5 Wall. 290, 305, 18 L. ed. 475, 479; Mawell v. Stewart, 22 Wall. 77, 22 L. ed. 564.

14 Hicks v. Fordham, C. C. A., 246 Fed. 236, 239.

15 Chicago Life Ins. Co. v. Cherry, 244 U. S. 25, 29, 37 Sup. Ct. 492, 61 L. ed. 966.

16 Phelps v. Mutual Reserve Fund Life Ass'n, C. C. A., 112 Fed. 453, 61 L.R.A. 717. See U. S. Oil & Land Co. v. Bell, C. C. A., 219 Fed. 785; Queens Land & Title Co. v. Kings County Trust Co., 255 Fed. 222.

§ 186p. 1 M'Aleer v. Lewis, 75 Fed. 134; Nesbit v. Riverside Ind. Dist., 144 U. S. 610, 36 L. ed. 562; Dowell v. Applegate, 152 U. S. 327, 38 L. ed. 463; Cromwell v. County of Sac, 94 U. S. 351, 24 L. ed. 195; Jaros H. U. W. Co. v. Fleece H. U. W. Co., 65 Fed. 424; Bissell V. Spring Valley Tp., 124 U. S. 225, 31 L. ed. 411; U. S. Tr. Co. v. New Mexico, 183 U. S. 535, 540, 46 L. ed. 315, 319; Werlein v. New Orleans, 177 U. S. 390, 44 L. ed. 817 Virginia-Carolina Chemical Co. V.

Kirven, 215 U. S. 252, 54 L. ed. 179; Re Coffin, 146 Fed. 181; Wood v. Browning, C. C. A., 176 Fed. 273; Hewitt v. Great Western Beet Sugar Co., C. C. A., 230 Fed. 394; Goodno v. Hotchkiss, 237 Fed. 687; Miller v. Belvy Oil Co., C. C. A., 248 Fed. 83. See Treat v. Ellis, C. C. A., 253 Fed. 484. A judgment at law upon a suit to collect a note is not an estoppel to a suit in equity to rescind for fraud a contract under which a note was given when this issue was not raised in the former action. Independent Harvester Co. v. Tinsman, C. C. A., 253 Fed. 935.

Where a decree in a suit upon a note adjudicated, that the plaintiff was a holder in due course, and provided, that the defendants could not make other defenses, they may in a later suit plead the statute of limitations. Pensacola State Bank v. Thornberry, C. C. A., 226 Fed. 611. It was held that a judgment by default in a suit upon a quantum meruit for services of a physician was not a bar to an action against him for malpractice. Fall v. Bennett, C. C. A., 248 Fed. 491. Contra:

where there is a different matter in dispute, the former judgment

Gates v. Preston, 41 N. Y. 113; Black v. Bartlett, 75 N. Y. 150; Bellinger v. Craigie, 31 Barbour (N. Y.) 534.

Where the same matters were pleaded as a ground of complaint in a suit in a State court to enforce the State Anti-Trust Act, it was held that the judgment was res adjudicata in a subsequent suit to enforce the Federal Anti-Trust Act. Straus v. Am. Publishers, C. C. A., 201 Fed. 306.

A judgment for the defendant in a suit under a State employers' liability act was held to be an estoppel to a suit charging the employer with a liability at common law for the same acts. Mazzariello v. Doherty, C. C. A., 204 Fed. 245.

It has been held: that, where, in a suit upon coupons, they and the bonds from which they were cut were adjudged to be invalid, the adjudication bound the plaintiff in a subsequent suit upon coupons from the same bonds which fell due later. Bissell v. Spring Valley Tp., 124 U. S. 225, 31 L. ed. 411; Fitch v. Stanton Tp., C. C. A., 190 Fed. 310; Hickman v. Town of Fletcher, C. C. A., 195 Fed. 907. That in a similar action a judgment that the bondholder had not paid the same in good faith, was binding in a suit upon coupons subsequently maturing. Fitch v. Stanton Tp., C. C. A., 190 Fed. 310.

That a decree in a foreclosure suit directing that coupons acquired by a corporation interested be preferred in payment out of the proceeds of the mortgaged property before the principal, did not bar a suit to require the same company to account to the bondholders for the loss sustained by its diversion

or withdrawal of the moneys from the sinking fund. Brown v. Pennsylvania Canal Co., 229 Fed. 444.

That a judgment for the defendants in a suit to set aside the foreclosure of a mortgage was res adjudicata against a suit by a privy of the complainant to foreclose a subsequent mortgage. Raphael V. Wasatch & J. V. R. Co., C. C. A., 201 Fed. 854.

That where on the reversal of a foreclosure decree after a sale thereunder, the court below, in its action upon the mandate, although it reversed the decree in part, confirmed the sale; the failure of the mortgagor to appeal from such confirmation rendered it res adjudicata so that another suit to set it aside could not be maintained. Grape Creek C. Co., v. Farmers' L. & Tr. Co., C. C. A., 80 Fed. 200.

That where in a suit to foreclose a mortgage, the mortgagee of the second mortgage appeared, defaulted, and a decree was entered declaring he had no interest or lien or claim to the mortgaged premises; the grantee of the owner of the equity paid the first mortgage debt, and had the foreclosure suit dismissed, held that the decree was not a bar to the assertion of the second mortgage in a subsequent suit. Barnes v. Cady, 232 Fed. 318. That a deficiency judgment taken by a trustee in a foreclosure suit does not prevent the bondholders from suing at law upon their bonds. Mackay v. Randolph Macon Coal Co., C. C. A., 178 Fed. 881.

That a judgment dismissing a bill to enforce an alleged mechanics' lien, upon the ground that there was no lien, was a bar to a subsequent suit by the alleged lienor, to redeem

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