,FEl?ERAL REPORTER,
vol. 43.
ever, ,tllll-t' contention' that have any SpecilUproperty in "W.ebster's])ictionary" is all nonsense, sin'ee the copyright has e;xpired. What do 'they mean by the e;xpression "their book," when they speak of Webster's Dictionary? It may qe their, book if they have bought it, as a copy of WElbllter's, Dictionary ;is, ply bO,ok if I have bought it. But in no other sense than that last indicated can the complainants say of Webster's Dictionary that it is their book. It does not appear that the have asked for a preliminary injunction in case, and we, hay-e less reluctance, on that account, in overruling the demurrer. The caSl;l> is not one in wjlich we would grant a preliminary injunc4on, if one wll.$ on the p,resent showing.
MII.LS
f1. SCOTT
et al.
(oiJrcu(t Ocrurt, s. D. Geoiata, S. D. June"28, 1890.) '" ':', "', "
1.
, , ,A ,judgment against a defendaut who: was never served with process, and whoBe appearance in the action was ellteredby an attorney without bis knoWledge or consent, ,may be enjoined, though defendant does not show that he has any de, , fense to the claim Bued on. " Where a bill to enjoin alleges that sald defendant was not legally served Witoprocess, and that he naYel' appeared in the action,either in personar by 'attorney, anamendment'thel'atl> alleging that said defendant never acknowledged service of process in saidactiqli'lljlither in person orby attorney, and that the acknowledgolliIit of setvicewhich'hlid Deen'made by an attorney was made without hisallthQritY,does not change the character of the bill. ' " , , " ,:: '",. , ' "
INroNOTION-JUDGMENT-ApPEAltA,NCB BY ArTORNBT.
2.SAME--EquITY :PLEADING-A¥ENDMBNT.
3. !3AME,,",",PRESP!!PTION.
such amendment is and allowed at th!l hearing in open in ,the presence of both parties; it Will be presumed t!lat It was made upon suffiCIent "" eVidence, &nd not for the purpo.tt., of ,vexation or delliy." ' ,' , Where a trustee, who has in his p0ssessiQn money belonging to the trust fund, buys land,and'takes title in his: o'Wlf name, but declares at the tiIIie that he buys the ,land witrh'the truE\tfunds;, alld records a written declaration of trust before the levy of any execution on suCh land. such declaration of trust is valid aa agaiilst the trustee's creditors. ',' ' V,ld.ID1tft: AS AGAINS1.'
'
.
, ' ,
InEquity., ' Chisholm &- ltrwin,forcomplainl'tnts. James Atkins. for defendants. :., ,J'
J. This is a suit ccimmEmced August 18, 1877, seeking to a judgment 6, 1877, in an action at law that had beeninstituted in this court in the name of JohnO. Ferroll, nary of Chatham 'county, Ga,., for tIle ,use of Levi :J3. Scott, against 'fhomas R. Mills, Jr., as principal, Thomas R. Mills,Sr. , as sl'lcurity" on thel:lpnd p*lcipal, as tpe,fld))1inistrator of the estate of onEt ·. PA.RDEE,
HILLS t1. SCOTT.
453
Spalding county, Ga., which the marshal had at that time levied on and advertised for sale as the property of Thomas R. Mills, Sr., one of the defendants in said judgment, to satisfy the execution issued thereon, are riot, and never were, the property of said Thomas R. Mills, Sr" in his ownright, but were, in fact, purchased by him with trust funds iog to his two sons, John B. and James M. Mills, having come into his hands as their trustee from the estates of two deceased persons by the name ofJohn B. Tufts and Louisiana Tufts, and that, therefore, said lots of land were in reality, though in his own name, held by him in trust for his two sons, John B. /;lnd James M. Mills; that on Janultry 30, 1877, prior to the levy in this case, and before any lien had tachedby reason of said judgment, said Thomas R. Mills, Sr., had, by. deed duly executed and recorded in the proper county, declared the said trust; that the said property was purchased by him with trust funds belonging to said John B. and James M. Mills, and was held by him solely as their trustee, and contracting to convey to said JohnB. and James'M. Mills whenever demanded. Said bill further sets forth that said judgment at against Thomas R. Mills, Sr., is utterly null and void, and no writ of fieri facias can legally issue thereon, be;. cause at the time the said suit was begun which culminated in said judgment, and for two years prior to that time, and all during the progress orsaid suit and since, the said Thomas R. Mills, Sr., was, had been, and is a resident of the northern district of Georgia, and therefore could not be sued in said southern district, unless found therein, and service of the writ effected upon him personally; that no such service Wltsso fected upon him, and no legal service was effected upon him at any time of said writ; and that said Thomas R. Mills, Sr., neverin any way, either in person or by attorney, appeaTed in said court to answer said writ, nQr qid he" either in person or by .attorney, plead to the same, or take any. notice tb:erl?9f; and, further, that he did, not know of any such ings in said court. A temporary injunction WltS granted August 20, 1877. ,Afterwards one of the defendants filed his answer to said bilL Still later on one of the complainants, Thomas R. .Mills, Sr., died; 80 also did. T. Akerman, one of the defendants. Another of the de;. fendants,W. H. Smythe, United States marshal making the levy, went ,out of a still later time the case was dropped from the docket or dismissed by mistake, but was afterwards reinstated, and the heus of Thomas R. Mills, Sr., were, after his death, J;Uade parties in his stead by proper bill of revivor. Thereafter the pleadings were perfected to iST sue joined, and the case came. on for hearing. Afterwards, at a hearing comlpenced January 23,1888, the defendants objected to the reading of the answers to interrogatories of Thomas R. Mills, Jr., wherein he tea. tities about the acknowledgment of service indorsed upon the writ in the said action at law, and they moved to exclude them as evidence in ,the case lor lack of allegations in the bill suitable to let them in. and de-, fendants·' said motion to exclude said answers to interrogatories appears to sustained. Thereupon the complainants moved to amend bW, by t,heproper place as follows:,; ., {', .,j
R. Ml1Is, $r.,in'e'CerJlppearled, in said sultelther in person or that he "eYElr service of the said in per11.0n r,b.Y:.,attor ney ;, ,that .. . . men. t. of service"whiph appears., in,. . doi'lled on the declaraWih' ip"s\&id on bond, was m,ade without frilmsai!l'l'l'lQt'na'sIA; Mills. Sr.; that he never ratifi.e(! the act of ' Thomas R.Mi!l's; Jr.· aDd anything about it. and about the saId ,action of debt on Lond'. uhtibthe:tuarshallevied: theft. fa. sought to be e.njl>t1ted."
qy!
"IThedefendantEl objected on the ground that, after iSBu'e' joinedaridundet:tne it should not be allowed. Theeourtallowed thecoinplainants'@<>,fHe their proposed amendment, sUbjeC'tl 'however, tothe to be heard, before the trial in opposition thereto., ::At this stateofthe case the furthkhearing was suspended, and the cause continued for the term. The case has now been fully heard, and ill'submittedupon all the questions of the case. ' ., . The)mpoint to be decidedis:whh regard to the'amendment allowed by the' court in January. It appears that when the suit at law was Mm:menced against Thomas R. Mills, Jr., anrl Thomas R. Mills, Sr."persorial'i3ervice Was made upon Thomas R. Mills, Jr., who at the same'time'indorsed upon the writ tli'a words and figures follow.ing, wit: ,"Service·of the within acknowledged, and copy waived, this 1st of March, 1876;" signed,llTaOHkS R.MII,LS. Per T. R. MILLS, Jr., Itappearsi ThomasR Mills, Jr., was an attorney at .Jaw, residing' place' where the court was held, .and that he wllathe son of Th()]naa'R. Mills, Sr.; but the evidence clearly establisl1eflthat he was not' by Thomas R(Mills, Sr. to represent him in any way hI to accept service for him: of any writ, or to enter any appeafaD'ce<for the said Thomas R. Mills, Sr., in said caUse. .The objections now. made ito the said amendment are that there has been no Mmplianee'wlth equity rule 29,Ulld, further, that the amendul'ent changes the character,of the bill by shilling the ground for the relief of Thomas R. MiHs,Sri 'fdo not think that either of these good. Equity rule 29 prohibits amendments after replica.tion filed,' llxcept upon U IlpeC1!tl o'rder of a judge, upon motion or petition, after diuenotice to:tne'oth*,1' party, and upon proof by affidavit that samfdrfnotmade forthepurpo8e of vexation or delay. or that the matter of the proposedamenditierit is material, and could not, with reasonable diligence, be soone}lihtroduced in the bill. The amendment in this case was ptdposed in open court in the presence of the parties, and, it is to be pres\i'med, upon sUfficient evidence that it was notnjade for: the' purpose' of vexation '01' delay, etc. 1tseemed to be, under tft" ruling of. the court, a proper amendment in order to do jilstice in the case' }>eDciing. I do ilotBee shifts the ground for the of the coDl:plainnnt Thomas :RiMins, Sr. His bill attacks this judgment as absolutely null and:,'oid:; : 'FIe states sufficient in his bill to so declare it,ifsustained by ,J:The amp.ndment attacks the judg:ment as, nuHand void. The. 'additional grounds set forth therein '. lire in line with, and, .only a. complement to, the case
made ill the
amendmjIDt. Second. The Pfoof in th.ecase clearly establishes that the acceptance ofservice by: Thomas R. Mills, Jr., of against Thomas R. Mills, Sr:, w,as.wholly unauthorized,and was never ratified. It is not con-' tended'tbatotherwisethanas by said acceptance ofservice was Thomas R. Mills, Sr., bound by the proceedings in the cO,urt. The judgment, as against ThoWU$ R. Mills, Sr., was a nullity, because the court acquired juriS!dictionof him, and he never had his day' in court. It is not uecellsary togo over and consider the conflicting authorities witl;t regard to th.e effect of an unauthorized appearance in the case by one of the re!N1ar of the court. If. we that tbisacceptance of service;.amounted tQ an appearance on tbe part of Th,omll:s R. Mills, Jr., as an attorney for Thomas R. Mills, Sr., whiehis d0':lNful, then on the authority of Shelton v. TiJlin, 6 How. 163, still Sr., was not bound. "This evidelll;Je does not contra<Uct the but explains it.. The appearance was the aC.t of the not tbeact of the court. Had the entry been that L. P. Perty came personally into .court, and waived process, it not have been .controverted j but thel:\ppearunce by counsel, who had nO authority to wa,iveprocess,'or to defend the suit for L. P.Perry, may be explained. 'appea.rance bycouIl.sel under such to the prejudice of a party, subjects the counsel to damages, but this would not ciently protect the rights of the defendant. He is not bound by the proceedings, and there is nootber principle which can afford him adequate protection. The judgment, therefore, against L. P. Perry must be considered a nullity, and consequently did not authorize the seizure and sale of his property )'See$helton v. Tiffin, IfUpra. It was contended in the argument that whether the juogment was binding or not 111>00 Thomas R. Mills, Sr., he could have no relief in a, court of equity to enjoin the execution of the judgment until he set forth in bis bill that he had or has some defense to the claim made in the action atlaw agaio!lt him·. The authorities cited in support of this proposition, so far as I· have examined them, are all cases in which there was an undisputed appearance by the party, or else such notice taken of the suit' as rendered· the judgment not void, although perhaps voidIt seems to ,n1e that" where a court at law has been. led illtO the error of rendering ajudgment against a party over whom the court had no jurisdiction, such error or mistake presents sufficient equity for the interference of a court of chanceryJor the purpose of preventing forced sale of property for the satisfaction of such voidjudgment. Third. The evidence shows that ThomasR. Mills, Sr., was the Uuatee of John B. Mills and James M. Mills; that as such trustee he had largesnIns ofmoney bEllonging to his said wards. Whetber and distippt{rop} his own p:roperty does. D;ot ,appear. bll.t)t does appe,ar the institution of the suit against him on ,1?0,llg. pf sop, as aforesaid, he invested ,cerWpfllnds
been
It. ,dOllS not in !lny .way that or injured by. the allowance of the
An
FEDERAL REl'ORrER,
in! itrcontroversy, declaring' at with trust funds. and for his said wards, taking the title in his own name, to hol4 until said wards should arrive at majority. , It further appears that before the levy of the execution issued' on judgIBE'nt atlaw, by proper deed, he declared the said trust, and that the said landsih controversy had been purchased with trust funds as a part of the tl'us1Hlatate, and belonged,Hi fact, to the cestui8 quetmstent. This declaration of trust, regularly witnessed, ackno,wledged, and recorded, and fixed the property as trust property, even if it was not, in fact, ,a conveyance of the property. I t is contended by the defendants iii this case that said deed was fraudulent, as made without considerntionj and ,the declarations therein 110t true in fact; but this defense is not sustained. There can 'be no doubt under the evidence that at the time of the declll.ratioii of trust the said Thomas R. Mills, Sr., was indebted to his said wards for a sum 6f'money exceeding largely the value oithe'lands declared to be trust property. He had the right, even if it was not his duty, to payor secure the said indebtedness, and to accomplish such result he had the right to c6nvey, in satisfa'ction of or to secUre suchqlaim, any property that he possessed; and the giving in pay11lent ora declaration of trust, under such circumstances, cannot be declared frauduient in a court of It seems to me to be clear that the oorn.'I>lainants'bill should, be rnaintained, and the injunction herein perpetuated. A decree to that effect will be enterEd. issued
GlLMER t1.' MOBIUS et
aZ.
, (Oif'cuit Oourt, M. D. Alabama. June 24, 1890.)
1. , 2. ,
LIMITATION OpA(lTIONs-PLEDGII:.
Where apl,edge made to secure future advances Is relludiated by the pledgee, the statute of limitations will begin to run against the pledgeor's right to recover the ,pledged, property from the time, such repudiationtaK8s place. A delay of'tnoi'e than five years in bringiIil<suit to redeem pledged property does not constitute where appears t,hat the pledgee has been gUilty of breach of ,trust, that he still holds the pledged property, which has increased in value, and that complainant had preViously brought suit. 1;0 redeem, which had been decided alfaiulit. him.
.··
EQt/ITy__LAOH&S-PLEDGll.
In Equity. ,On demurrer to the bill. W. A. Gunter, for complainant. H. o. Tompkins, for defendants. '" PARDEE, J, The bill alleges, in substance, that complainant, Gilmer, about the year 1870, being a subscri'ber to the capital stock of theEIyton Land Company; a corporation under the law'sof Alabama, for 120 shareS; tlf the par or nominal value of $100 per share, but issued at 50 centS