Theller v. Hershey

HAWLEY, District Judge (orally). Do the averments in the bill show that the respondent herein was privy to the former action? Are the allegations sufficient to show that respondent would be bound by the judgment in Theller against Boss? The argument on behalf of respondent is (1) that there is no allegation that he had any such control over the former action as to be bound by any judgment rendered therein; (2) that there is no allegation that the judgment in Theller against Boss is a final judgment. It is not necessary for the complainant to allege in direct terms that the respondent had such control over the former action as to be bound by the proceedings' had therein, but he is required to state such facts as will enable the court to determine whether, if true, he is so bound. I am of opinion that the facts stated in the complaint are sufficient. Ordinarily, it is for the court in the trial of a case to determine who are parties and privies. Parties include, not only those whose names appear upon the record, but all others who participate in the litigation by employing counsel, or by contributing towards the expenses thereof, or who, in any manner, have such control thereof as to be entitled to direct the course of proceedings therein. Thus, it is said in 3 Rob. Pat. § 1176: “Where several defendants, by agreement, contest one of the actions in their joint behalf, all become thereby parties to the suit, and are equally concluded by the judgment.” The law is well settled that parties and privies include all who are directly interested in the subject-matter, and who had the right to make defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment. United States & Foreign Salamander Felting Co. v. Asbestos Felting Co., 4 Fed. 816; Miller v. Tobacco Co., 7 Fed. 91, 93; Claflin v. Fletcher, Id. 851; American Bell Tel. Co. v. National Improved Tel. Co., 27 Fed. 663, 665; Eagle Mfg. Co. v. David Bradley Mfg. Co., 50 Fed. 193, 195; Id., 6 C. C. A. 661, 57 Fed. 980, 990, and authorities there cited; Lovejoy v. Murray, 3 Wall. 1, 18; Robbins v. Chicago City, 4 Wall. 657, 672; Walk. Pat. (2d Ed.) § 468. Applying the rules announced in these authorities, it is evident that, under the allegations in the bill in this case, the respondent must be held to be privy to the action of Theller against Boss in such a sense that he had the right to control the litigation therein. The suppositious case cited by the circuit judge in Miller v. Tobacco Co. is directly in point, and furnishes a conclusive answer to the argument of respondent herein: “Suppose there is a case, which is understood to be a test case, involving the validity of a patent, or anything else, against a particular individual, but involving a subject-matter concerning which a large number of other persons are equally interested with the particular defendant in that ease, and sup [577] pose all the parties who are Interested, or a number of them, come together, enter into a contract that they will raise a fund to carry on that litigation, that they will unite for the purpose of employing counsel, and combine to carry it on in the name of the party to the record; it seems to me that the persons who, under such a contract as that, actually contribute money for the purpose of carrying on a suit, are authorized to go into that court a.nd use the name of the party to the record in making such motions and taking such steps as are necessary for the protection of their particular Interest In it.” The same case also furnishes an answer to the second proposition discussed by counsel: If the judgment in Theller against Boss is final, it would, upon the facts stated in the bill, be conclusive against respondent; if the judgment is not final, the trial of this case might be continued until it became final. In Bobbins v. Chicago City, supra, the court said: “Conclusive effect of judgments respecting the same cause of action and between the same parties rests upon the just and expedient axiom that it is for the interest of tlie community that a limit should be opposed to the continuance of litigation, and that the same cause of action should not he brought twice to a final determination.” Demurrer overruled.