American Trust & Savings Bank v. Farmers' Loan & Trust Co.

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The questions arising out of the conflicting assertions of jurisdiction by the national and state courts, which have been argued at great [926] length., we do not find it necessary, or within our rightful power, to ■decide. While - under, the rule of equity pleading it was proper, and' perhaps necessary, that the appellant, in order to avail itself of the decree of the superior court as a bar, if it be a bar, to the further prosecution of the suit to foreclose, should set it np by a cross bill (Story, Eq. Pl. § 393), the pleading, it is conceded, was in the nature of a plea puis darrein continuance; and, having been pleaded in bar, if it did not, like a plea puis at law, constitute a waiver of other pleas or answers, it was necessary that it should he disposed of together with or in the same manner as the answer theretoforé filed, before a final decree in the case could be entered. Until the merits of the cross bill as an alleged bar to the prosecution had been determined there could not properly he a final decree upon the principal bill, any more than there could be such a decree without disposing of an answer in bar. There was, therefore, no conceivable necessity for an injunction against proceeding to a decree in the main case or on the principal bill. In fact this cross bill made no new, subordinate, or collateral ■ease, which could be carried to a separate conclusion, for the obtaining of which it might he important that there should be a suspension or stay of proceedings on the original bill. It is, of course, conceded, •as in Smith v. Iron Works, 165 U. S. 518, 17 Sup. Ct. 407, the supreme court has decided, that the right of appeal from interlocutory orders granting or refusing injunctions, conferred by the acts of March 3, 1891 and February 18,1895, is to be interpreted liberally, but there is no necessity for going, and there could be no propriety in going, the length necessary to sustain this appeal. The cross bill, as filed, contained no prayer for an injunction, and the effort made to amend the prayer would seem to have been an afterthought, not germane to the bill, and as "manifestly pretentious” as the like prayer which was condemned by this court in Safe-Deposit Co. v. Dickson, 24 C. C. A. 60, 78 Fed. 205. The appeal is therefore dismissed.