G. & C. Merriam Co. v. Saalfield & Ogilvie
Argued January 14, 17, 1916
Decided April 17, 1916
241 U.S. 22
Whether the district courtroom has acquired jurisdiction over the person of defendant can be reviewed by using this Court on direct appeal under § 238, Judicial Code.
An affidavit of one not a party to an movement showing on its face that it turned into for use only as evidence for defendants held in this situation now not to be construed as an appearance by using the birthday celebration making it.
Only a very last judgment is res judicata as between the parties; neither is a decree res judicata as in opposition to a third celebration taking part within the protection except it's so a ways final as to be res judicata in opposition to the defendant himself.
Even though one no longer a celebration to the movement might be estopped through final decree if and when made, he cannot be added into the suit through ancillary lawsuits earlier than final decree as if he were already estopped.
One now not a defendant, however who is estopped with the aid of the decree because of having exercised manipulate of the defense and who is not a resident of the district, can not be introduced into the action by the filing of a supplemental invoice and mere notice to, and substituted provider on, him with out carrier of unique method inside the district.
Such a supplemental bill isn't depending on or ancillary to the original in shape within the sense that jurisdiction of it follows jurisdiction of the authentic reason.
The doctrine of res judicata furnishes a rule for the selection of a subsequent case between the equal parties or their privies respecting the same motive of action, and simplest applies whilst the following motion has been added.
The records, which contain the jurisdiction of this Court on attraction from the district courtroom under § 238, Judicial Code, and the jurisdiction of the district courtroom to make
Page 241 U. S. 23
and put in force a decree based on substituted service of technique, are said within the opinion.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF OHIO
Whether the district court has acquired jurisdiction over the individual of defendant can be reviewed with the aid of this Court on direct enchantment beneath § 238, Judicial Code.
An affidavit of 1 not a party to an movement displaying on its face that it became for use most effective as proof for defendants held in this case not to be construed as an look by means of the birthday party making it.
Only a very last judgment is res judicata as among the events; nor is a decree res judicata as towards a 3rd birthday celebration taking part in the protection until it's so a long way very last as to be res judicata in opposition to the defendant himself.
Even even though one no longer a celebration to the motion might be estopped by means of very last decree if and when made, he cannot be brought into the match by ancillary complaints earlier than final decree as if he were already estopped.
One not a defendant, but who's estopped via the decree due to having exercised manipulate of the protection and who isn't a resident of the district, can not be brought into the movement through the filing of a supplemental invoice and mere note to, and substituted carrier on, him with out service of original procedure within the district.
Such a supplemental invoice isn't depending on or ancillary to the authentic in shape within the sense that jurisdiction of it follows jurisdiction of the unique motive.
The doctrine of res judicata furnishes a rule for the selection of a subsequent case among the same events or their privies respecting the equal cause of motion, and simplest applies while the subsequent motion has been introduced.
The information, which involve the jurisdiction of this Court on enchantment from the district court below § 238, Judicial Code, and the jurisdiction of the district court docket to make
and enforce a decree based totally on substituted provider of technique, are said in the opinion.
MR. JUSTICE PITNEY brought the opinion of the Court.
This is a right away attraction from the district court under § 238, Judicial Code, upon the sole query of the jurisdiction
Page 241 U. S. 24
of that court docket to make and enforce a very last decree in personam in opposition to appellee George W. Ogilvie. The decree become founded upon a supplemental bill making Ogilvie a celebration to a in shape already pending, and upon substituted provider of technique on individuals stated to symbolize him as legal professionals in the State of Ohio, he being a citizen and resident of the State of New York, and not having been in my opinion served.
The information are as follows: in December, 1908, appellant filed its unique bill in opposition to Saalfield in the then Circuit Court of the United States for the Northern District of Ohio, for remedy towards unfair competition within the enterprise of publishing and promoting dictionaries. Saalfield was duly served with method, seemed, and made protection. The circuit courtroom having brushed off the invoice, the circuit court of appeals reversed the decree (a hundred ninety F. 927, 198 F. 369), and remanded the reason, with path for an injunction and an accounting in conformity with its opinion. The district courtroom made a decree according with the mandate Sep 11, 1912, with an order of reference for the accounting. Thereafter and on December sixteen, 1912, the supplemental invoice was filed, putting in place in substance that, since the access of the decree of Sep 11, complainant had discovered, and it charged the reality to be, that Ogilvie had from the start actively performed, controlled, and directed the protection of the healthy, having decided on, retained, and paid, as solicitors and recommend for defendant Saalfield, the organization of Weed, Miller, & Nason, of Cleveland, Ohio, and Mr. George F. Bean, of Boston, Massachusetts, who, in pursuance of stated retainer, appeared on behalf of Saalfield, but acted for and below instructions of Ogilvie; that during fact Ogilvie turned into the proprietor of the dictionaries concerned in the fit, which were published and sold for his gain and income through Saalfield under a settlement offering for the charge of royalties to Ogilvie; that, pending the in shape, Saalfield had
Page 241 U. S. 25
transferred and assigned to the Saalfield Publishing Company, a employer, his enterprise of publishing and promoting the dictionaries; that the organisation, as successor of and claiming thru and under Saalfield, changed into bound by using all the court cases within the fit, and that it became then carrying at the business, under agreement with Ogilvie, and that, via cause of the data noted, Ogilvie had made himself aware about the match, and an actual though no longer a nominal birthday party thereto, and was certain via the court cases and decree therein. Appropriate remedy changed into prayed towards Saalfield, the Saalfield Publishing Company, and Ogilvie.
Upon the filing of the supplemental invoice and a sworn statement putting forth that Ogilvie become a nonresident of the Northern District of Ohio, and that, as alleged within the supplemental invoice, the company of Weed, Miller, & Nason, of Cleveland, and George F. Bean, of Boston, Massachusetts, who had regarded respectively as solicitors and counsel for defendant Saalfield inside the protection of the match, had been in fact retained and employed via Ogilvie for that purpose, and paid through him and acted below his instructions and directions, complainant moved for and obtained an order authorizing substituted carrier of system towards Ogilvie, to be made within the district upon the Cleveland attorneys, and within the District of Massachusetts upon George F. Bean. Service was made hence, and the system lower back, and it appearing from a testimony made by way of defendant Ogilvie, and filed in the reason on February 22, 1913, that he had had real note of the supplemental invoice, an interlocutory decree pro confesso become entered, and this turned into accompanied, on October 16, 1913, with the aid of a final decree for the healing towards him of income amounting, with hobby, to $eighty one,312.seventy eight, besides costs. Thereafter Ogilvie, by means of solicitors, acting especially for the reason, moved to quash the service of the writ of subpoena issued against him, and to set aside all court cases based thereon. The district courtroom, having heard testimony, granted the
Page 241 U. S. 26
motion, and at the identical time denied a petition filed by means of complainant for enforcement of the very last decree in opposition to Ogilvie, and from final orders entered for wearing into impact this selection complainant has appealed to this Court.
There is a movement to disregard primarily based upon the familiar floor that the "jurisdiction of the courtroom" mentioned in § 238, Judicial Code, way its jurisdiction as a federal court, and now not its standard jurisdiction as a judicial tribunal, the insistence being that the contention of complainant under presented no more than a widespread question of method in equity, and now not one odd to the district courtroom as a federal court. But the difference mentioned bears upon the character of the jurisdiction exercised or refused to be exercised after a valid service of process upon the defendant, and does not have an effect on the query whether the court has received jurisdiction over the man or woman, which is the only here worried. This query can be reviewed on direct enchantment. Shepard v. Adams, 168 U. S. 618, 168 U. S. 623; Remington v. Central Pacific R. Co., 198 U. S. 95, 198 U. S. 99; Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 198 U. S. 434; Commercial Accident Co. v. Davis, 213 U. S. 245, 213 U. S. 256; Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 215 U. S. 440; Herndon-Carter Co. v. James N. Norris, Son & Co., 224 U. S. 496, 224 U. S. 498. In Bache v. Hunt, 193 U. S. 523, the selection that changed into held not reviewable on direct appeal became rendered upon a plea to the jurisdiction of the court over the challenge count number. In Courtney v. Pradt, 196 U. S. 89, the in shape were removed from a Kentucky country court to the US circuit court docket, wherein Pradt filed a special demurrer, assigning as reasons that the court had no jurisdiction of the individual or of the subject remember. The court docket dismissed the match for want of jurisdiction, and it appeared from its opinion that this became achieved because Pradt, who turned into sued as executor, become appointed as such in Wisconsin, and a match in opposition to a Wisconsin
Page 241 U. S. 27
executor couldn't be maintained within the Kentucky nation court, nor in the federal court. The question of jurisdiction was no longer certified to this Court, and the enchantment became therefore disregarded. These cases are plainly distinguishable. The gift movement to dismiss ought to be denied.
Appellant s case upon the merits is rested upon the principle that Ogilvie changed into aware about the authentic match towards Saalfield, and an real even though not an ostensible birthday party thereto, in one of these real sense that the final decree therein could be res judicata in opposition to him; that the district court docket had jurisdiction to entertain the healthy as towards him however he resided out of doors the district, due to the fact, by voluntarily coming in and protecting for Saalfield, he had submitted to the jurisdiction and waived the objection, and because the supplemental invoice became a dependant and ancillary intending, and consequently nicely brought inside the district in which the authentic intending become pending; and sooner or later that, due to its being an ancillary proceeding, substituted service upon the solicitors representing Ogilvie inside the authentic intending became enough to difficulty him to the jurisdiction for the functions of the supplemental bill. There is a faint try to sustain the jurisdiction on the concept that Ogilvie s affidavit, filed February 22, 1913, as cited in the interlocutory decree seasoned confesso, amounted to a widespread look, as it become submitted in competition to a motion for injunction at the supplemental invoice, and as it "argued the case upon the deserves." This may be overruled at once. The affidavit suggests on its face that it become to be used simplest as proof for defendants Saalfield and the Publishing Company, and was now not to be construed as an appearance by using Ogilvie.
The district courtroom, whilst raising some query whether the solicitors and recommend who had regarded for Saalfield at Ogilvie s cost had not concluded their offerings in
Page 241 U. S. 28
Ogilvie s behalf prior to the filing of the supplemental invoice, yet rested its selection considerably upon the ground that complainant did not recognise that Ogilvie had any connection with Saalfield or the Saalfield Publishing Company till after the making of the decree of Sep 11, 1912, upon the taking place of the mandate from the circuit court of appeals, and that, for this reason, Ogilvie could not have taken benefit of that decree had it been adverse to complainant, and therefore changed into now not estopped through it, in view that estoppels have to be mutual.
In so keeping, the court applied the doctrine that has been laid down in some of cases, that a third party does now not come to be bound with the aid of a decree because of his participation inside the protection unless his conduct in that regard become open and avowed or in any other case acknowledged to the opposite party, in order that the latter might have been concluded with the aid of an destructive judgment. See Andrews v. National Foundry & Pipe Works, seventy six F. 166, 173; Lane v. Welds, ninety nine F. 286, 288. We want now not remember the soundness of the doctrine, for appellant does now not query it, insisting simplest that it isn't always applicable right here due to the fact Ogilvie s control of the protection made in Saalfield s call became acknowledged to appellant at some stage in the development of the suit, and before very last decree, it being contended that the decree of 9/11, 1912, was interlocutory, and not final.
But it's miles acquainted regulation that most effective a very last judgment is res judicata as among the events. And it is obvious that a decree can not be res judicata as against a 3rd party taking part inside the defense except it is so far final as to be res judicata towards the defendant himself. Hence, if the decree of 9/11 turned into no longer final as among appellant and Saalfield, it cannot be res judicata as in opposition to Ogilvie, and accordingly the essential floor for intending in opposition to the latter by using supplemental bill with substituted service of technique disappears. This sufficiently shows the weakness of appellant s role, which, upon analysis, is
Page 241 U. S. 29
found to be this: that, upon the concept that Ogilvie would be estopped by a final decree if and when made, it sought to convey him into the fit, before final decree, as if he were already estopped. However convenient this might be to a complainant in appellant s position, it's miles inconsistent with standard standards.
But, assuming for argument s sake that the decree become very last, and that Ogilvie was completely estopped by it because of having taken charge and exercised manipulate of Saalfield s defense via solicitors and recommend retained and paid via himself, and assuming that their employment had now not been terminated at the time the supplemental bill changed into filed, the query of the sufficiency of the court cases taken with the aid of way of substituted provider to convey Ogilvie in the jurisdiction of the court docket nonetheless stays, and this relies upon upon whether or not the supplemental bill is a established and ancillary intending, jurisdiction of which follows jurisdiction of the original cause, and may be exerted upon mere note to the party, with out provider or unique system inside the district. It appears to be idea that, because Ogilvie was recognized in interest with the defendant in the unique fit, and had and exercised the proper to make protection and manipulate the proceedings and attraction from the decree, he may be dealt with for all functions as an actual celebration to the record. But this in no way follows. The doctrine of res judicata furnishes a rule for the choice of a next case between the identical parties or their privies respecting the equal reason of action. Obviously, the rule of thumb for decision applies handiest while the following movement has been introduced. So some distance because the supplemental bill seeks to bring in Ogilvie as a brand new party and attain relief in opposition to him, it is not, in any right feel, dependent upon or ancillary to the authentic healthy towards Saalfield. It isn't always analogous to a suit for an injunction towards the prosecution of a previous fit or the enforcement of a judgment therein. It has now not
Page 241 U. S. 30
for its item some further dealing with the same subject matter. Ogilvie isn't within the position of one who, pending a suit approximately property, has acquired an interest within the difficulty count number. The object of the authentic invoice became to reap an injunction and get better profits from Saalfield; that of the supplemental bill is to obtain an injunction and an accounting of earnings against Ogilvie respecting the same transactions. But the deserves are not to be adjudicated towards him till he's delivered into courtroom, and as in opposition to him, the supplemental bill is an original, no longer an ancillary, intending. In Dunn v. Clarke, eight Pet. 1, one Graham had recovered a judgment at regulation in an action of ejectment towards the complainants, Clarke and others, inside the United States circuit court docket, jurisdiction depending upon variety of citizenship. Graham having died, the defendant, Dunn, held the land recovered in consider under his will. Clarke and others filed their bill inside the identical court, praying for an injunction towards the judgment and for a decree that the land in controversy be reconveyed. All the complainants and defendants have been residents of the identical nation (Ohio). This Court said:
"No doubt is entertained by the courtroom that jurisdiction of the case can be sustained, to this point as to stay execution on the judgment at regulation against Dunn. He is the consultant of Graham, and although he's a citizen of Ohio, but this fact, under the occasions, will not deprive this Court of an equitable manage over the judgment. But past this the decree of this Court cannot amplify. Of the motion at law, the circuit court docket had jurisdiction, and no change in the residence or condition of the parties can take away a jurisdiction which has as soon as connected. If Graham had lived, the circuit court docket would possibly have issued an injunction to his judgment at law, with out a non-public service of technique, besides on his counsel, and as Dunn is his representative, the courtroom can also do the identical element as towards him. The injunction
Page 241 U. S. 31
bill isn't always taken into consideration an unique bill among the equal events, as at regulation, however, if other events are made in the invoice, and distinct pastimes involved, it need to be taken into consideration, to that quantity at the least, an unique bill, and the jurisdiction of the circuit courtroom have to rely on the citizenship of the parties. In the prevailing case, numerous people are made defendants who have been not events or privies to the suit at regulation, and no jurisdiction as to them can be exercised by using this or the circuit court."
So far as it suggests the difference among an original invoice and one that is not to be so taken into consideration, the case is in point upon the present question. The reference to "privies" have to be taken in reference to the challenge count number, which if so became the ownership of land.
No case to which we are referred, nor any other that we've determined, * goes to the extent of maintaining as an ancillary proceeding a invoice interposed for the reason of acquiring a decree in personam against a party upon the ground that he had participated within the protection of a previous action towards another birthday party with a view to turn out to be bound upon the doctrine of res judicata. Kelley v. T. L. Smith Co., 196 F. 466, is mentioned. In that case, Kelley, a citizen of New York, and McConnell, a citizen of Illinois, had commenced an action in a Wisconsin state court to compel the secretary of the Smith
Page 241 U. S. 32
Company to transfer certain stocks of inventory standing in Kelley s call to McConnell, as his assignee. A firm of Milwaukee attorneys introduced the motion, and an legal professional connected with that company was in possession of the certificate as agent of McConnell. Thereupon the employer and its secretary filed within the United States circuit courtroom a invoice affirming that the equitable name to the stocks was worried in a fit already pending in that courtroom, to which the employer changed into a celebration defendant; that hence unique parties, in one of a kind courts, were insisting that complainants switch the equal shares to every, and if complainants have to comply with the demand of either, they could be unable to switch the shares to the other if so ordered via a courtroom decree, and that they had no interest within the stocks, and were willing to transfer them to the party observed to be the owner. On the displaying that Kelley and McConnell were now not to be found in the district, and that the stock certificates turned into within the district, in the fingers in their legal professionals and agent having authority to claim and preserve their rights, the courtroom ordered the subpoena and the attention of utility for an interlocutory injunction to be served, and that they were served, upon stated lawyers and agent. The circuit court overruled a demurrer, and the courtroom of appeals sustained this decree, now not, but, upon the floor that the healthy became an ancillary intending in aid of the courtroom s jurisdiction in a pending in shape, but upon the ground that, as an unbiased and original bill, it offered a subject cognizable in a circuit court docket of the United States, and that, although jurisdiction in personam could not be obtained by using service of method under Equity Rule 13, due to the absence of the defendants, substituted provider became permissible beneath the then Equity Rule 90, by analogy to the English practice. Without intimating any view as to the correctness of this reasoning, it's far enough to say that the selection has no pertinency to the question right here provided.
Page 241 U. S. 33
Upon these grounds, we're of opinion that substituted provider of procedure in opposition to Ogilvie was inadmissible, and that the district court docket did not err in quashing the provider and putting apart the proceedings based totally thereon, nor in refusing appellant s petition for enforcement of the decree towards him.
Final orders affirmed.
* See Minnesota Co. v. Saint Paul Co., 2 Wall. 609, 69 U. S. 633; Freeman v. Howe, 24 How. 450, 65 U. S. 460; Krippendorf v. Hyde, one hundred ten U. S. 276, 110 U. S. 285; Clarke v. Mathewson, 12 Pet. 164, 37 U. S. 171; Webb v. Barnwall, 116 U. S. 193, 116 U. S. 197; Covell v. Heyman, 111 U. S. 176, 111 U. S. 179; Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329, 123 U. S. 333; Gumbel v. Pitkin, 124 U. S. 131, 124 U. S. 144; Morgan s Co. v. Texas Central Ry., 137 U. S. 171, 137 U. S. 201; Byers v. McAuley, 149 U. S. 608, 149 U. S. 614; Root v. Woolworth, one hundred fifty U. S. 401, a hundred and fifty U. S. 413; White v. Ewing, 159 U. S. 36, 159 U. S. 39; Carey v. Houston & Texas Ry., 161 U. S. a hundred and fifteen, 161 U. S. one hundred thirty; Wabash R. Co. v. Adelbert College, 208 U. S. 38, 208 U. S. 54; Cortes Co. v. Thannhauser, nine F. 226; Crellin v. Ely, 13 F. 420; Abraham v. North German F. Ins. Co., 37 F. 731; Gasquet v. Fidelity Trust Co., 57 F. 80.
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