Case v. Mountain Timber Co.

CUSHMAN, District Judge. This matter was, so far as the issues made by defendant in its separate answer and the reply and answer .of the plaintiff thereto are concerned, tried to the court upon written stipulation, without a jury. [ 1 ] The defense set. up is that of res adjudicata; that plaintiff is barred and estopped from further urging his cause of action, aa set out in his complaint, because he was heard thereon in the district court of Douglas country, Neb., in a cause in which both the plaintiff and defendant here were parties, which cause was entitled “Robert J. Tate and Robert Y. Appleby, Plaintiffs, v. Mountain Timber Co., a Corporation, Robert Z. Drake, Harry D. Miller, and Willard Case, Defendants” ; and that said cause was therein determined by the court, adversely to the plaintiff here. Under the evidence introduced, this defense must prevail. Although the suit in this court was begun before that in the district court of Douglas county, yet, as in this court only a'money judgment was asked and the exercise of jurisdiction over any res in such controversy was ¡not sought, the nature of the relief sought being such as to make it appear that it would probably not be necessary to exercise exclusive jurisdiction over any res, it is clear that, decree and judgment having been first rendered by the district court of Douglas county, a court of general jurisdiction, in a cause involving the same issues, such decree is binding here and must be accorded full credit and effect, providing that court had jurisdiction of the person of the defendant and the subject-matter of the suit. Sperry-Hutchinson Co. v. City of Tacoma (C. C.) 190 Fed. 682; Id. (D. C.) 199 Fed. 853; Powers v. Blue Grass B. & L. Ass’n (C. C.) 86 Fed. 705, 708. [2] No question is made but that the district court of Douglas county had jurisdiction of the subject-matter, but it is contended that it was without jurisdiction of the person of Willard Case, defendant there, plaintiff here. After publication of summons in the district court of Douglas county (which would not have conferred jurisdiction to determine' the controversy arising, in this court), the defendant there (Willard Case) appeared tod moved the court thgt the complaint against [567] him be made more definite and certain. The appearance made by him for that purpose was general, arid by this course, in invoking the court’s power and jurisdiction, he must be held to have submitted himself to the jurisdiction of that court and to have waived any objection thereto, and that objection by him, thereafter made to the jurisdiction, came too late, and the court’s decree, thereafter rendered, concludes him, unless such decree is set aside upon appeal or other regular proceeding in courts established for its review.