CRESCENT CITY, ETO., CO.
V.
BUTCHERS', ETO.,
00.
2'25'
CRESCENT CITY LIVE-STOCK, LANDING & SLAUGHTER-HoUSE CO. 11. BUTCHERS' UNION LIVE-STOCK, LANDING & SLAUGHTER-HoUSE CO.· (O'ircuit Court, E. D. Louisiana. April 25, 1882.) 1. JURISDICTION.
When there is 8 federal question involved in the suit, the circuit court hall jurisdiction without regard to the citizenship of the parties. 2. LIs PENDENS, 'The pendency of Ii similar suit between the same parties in the state court h not sufficient ground in law to sustain a plea of Us pendens: Stanton v. Emery,93 U. B. 554. Ins. Co. v. Brune, 96 U. B. 588. 3. EQuITY PLEADING-RuLES 32 AND 37. Under the thirty-second rule in equity a defendant may demur to part ot a bill, plead to a part, and answer to the residue; and under the' rule no demurrer or plea shall be held bad and overruled upon argument only because the answer of the defendant may extend to some part of the same matter as may be covered by the demurrer or plea; but there is no rule which allows a defendant to demur to the whole bill, plead to the whole bill, and answer to the whole bill at the same time.
Thomas 1. Semmes, Robert Mott, and Henry Kelly, for complainant. B. R. Forman, for defendant. PARDEE, C. J., (BILLINGS, D. J., concurring.) This cause has been Bet down for hearing, and heard, on demurrer and pleas. The murrer is a general one, going to the whole bill. The questions raised by it have been practically disposed of on the hearing heretofore had for a preliminary injunction. As we adhere to our opinions given 'on that hearing, the demurrer must be overruled. The first plea sets up a forfeiture of complainant's and rights by reason of having removed the grand Slaughter-house, as originally located on the right bank of the Mississippi river, under the provisions of act No. 118 of 1869, to the left bank of the river. This plea is insufficient, as, under the terms of said act 118 of 1869, such removal would not work.a forfeiture of complainant's charter and exclusive rights, even if such forfeiture could be inquired into collaterally. The second plea is to the jurisdiction of the court, on the ground that both complainant and defendant are citizens of Louisiana. The federal question involved in this suit, to-wit, the' constitutionality .Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
v.12,no.3-15
226
FEDERAL BEPOBTElt· · ' J
of certain articles of the constitution of the state of Louisiana under rights which impair the which the defendant claims and validIty of complainant's contract, making a case in equity arising under the constitution andlaws of tb'e United States, gives the court jurisdiction. This is no'longer an open question. The third plea setsfbrth that there is a suit between the same parties on the same causes of action depending in the state court. This plea'is insufficient in form and substance in not showing when the suit in the state court was comntenced,-whether prior or subsequent to this suit; whether issue was joined, etc. See Story. Eq. Pl. § 737. And it is insufficient in law. Stanton v. Ebury, 93U. S. 554; tns. Co. v. Brune, 96 U. S: 588. The fourth plea avers certain articles of the Louisiana constitution of 1879, abolishi:qg monopolies and giving the regulation of' s\aughter-houses to the municipal corporations, whi(lh latter have enlarged the limits within which slaughtering of animals for food may be done. ' The effect of the article of the Louisiana constitution abolishing monopoliE:ls, as affecting complainant's rights, has passed upon in this case. We still adhere to the opinion that complainant's exclusive right, contracted under act No. 118 of 1869, is not affected by the constitution of 1879. This plea also must be held insufficient. We notice that with the demurrer to the whole bill and four separate pleas, each going to thE:l whole bill, there is also filed an anSwE:lr to the whole bill, in which all the mattE:lrs averred in the pleas ara again set forth. Under the thirty-second equity rule a defendant may demurt'o part of a bill, plead to part, and answer as to the residue. Under the thirty-seventh equity rule no demurrer or plea shall be held bad and overruled upon argument only, because the answer of the defendant may extend to Bome part of the same matter as may be covered by such demurrer or plea. But we do not understand that there is any rule that allows a defendant to demur to the whole bill, plead to the whole bill, and answer to the whole bill at the same time. The effect of such pleading is that the plea is taken as waiving the demurrer, and the answer as waiving the plea. See Daniell, Oh. 787, 788. In this view of the case, as well as for reasons before given, the demurrer and pleas filed herein should be overruled. And it is so ordered. See same case, 9 FED, REP. 743.
OGLESBY
ATTBILL.
221
OGLESBY and others v. ATTBILL.(Oircuit Court, E.D. Louliana. April, 1881.) 1. EQUITY PRAOTICB
.uro
JURISDIOTION-BILL FOR A NEW TRIAL.
A bill for a new trial in an action at law, on account of frauds practiced and perjuries committed by plaintiff and his at the trial at law,which have been discovered since the term at which the judgment at law was rendered, cannot be filed in any court other than the one before which such trial was had and which rendered such judgment. 2. SUBSTITUTED SERVIOE.
In such a case service of process upon the 'attorney who represented tlle defendant in the action at law in which he was pla{nCff, in the absence of the said defendant from the district, adjudged to be gooct
Richaf'd De Gray, Oharles B. Singleton, and Richard H. Browne, fot complainants. Thomas J. Semmes, for defendant. BILLINGS, D. J. The question now is solely as to the validity of a service of a subpoona upon the attorney of a party who does not reside within the district of Louisiana. The facts necessary to properly apply the principles of law to the case are as follows: Henry Y. Attrill, who resides in New York, commenced a suit at law in the United States circuit court for this district against.J. H. Oglesby and Jules Cassard, who set up by way of counter.claim (or, as it is termed by the Code of Louisiana, by way of "reconventional demand") a cause of action. This twofold cause was tried by a jury, and a verdict rendered against the demand of the plaintiff (Attrill) and the demand of the defendants, (Oglesby and Cassard.) Upon this verdict judgment was entered. A writ of error was sued by the defendants, and upon this writ the cause is now before the United States supreme court. Oglesby and Cassard have filed a bill in equity, which, if consid· ered according to the nomenclature of bills in chancery, would be denominated a bill for a new trial in an action at law on account of frauds practiced and perjuries committed by plaintiff and his nesses at the trial at law, which have been discovered since the term at which the judgment at law was rendered. If considered ing to the terminology of our Code it would be classed among actions to annul a judgment on the ground that it had been obtained through false swearing. Whether considered as a suit in equity or an action -Reported by Joseph P. Hornor, Esq. of the New Orleans bar.