Jones v. Hillis

SEVEREN'S, Circuit Judge (after stating the facts as above). This case was brought on for hearing before the court upon bill, the plea of the defendant David M. Hillis, and replication. Upon the issue thus joined, I find from the evidence adduced that the plea is true in point of fact. Under the old chancery practice the consequence of the foregoing determination would be a decree for the dismissal of the bill, but under equity rule S3 this consequence does not follow; the provision therein contained being that “if upon an issue the facts stated in the plea be determined for the defendant, they shall avail. him as far as in law and equity they ought to avail him.-” This changes the former doctrine. The result of the conclusion thus pronounced is that the court is required to. determine the sufficiency of the plea to bar the suit. Stead v. Course, 4 Cranch, 403, 2 L. Ed. 660; Matthews v. Manufacturing Co. (C. C.) 2 Fed. 232, 235; Farley v. Kittson, 120 U. S. 314, 7 Sup. Ct. 534, 30 L. Ed. 684; Pearce v. Rice, 142 U. S. 41, 12 Sup. Ct. 310, 35 L. Ed. 925. In these cases the change made in the equity practice by rule 33, which controls the result upon the determination of the truth of a plea, was recognized and the effect of it illustrated. Upon the hearing of the plea, the facts stated in the bill and not denied by answer are taten to be true. So taken, I think (contrary to my first impression) that they make out a contract of a nature so far different from that set up in the Illinois suit as, to prevent the decree rendered in that suit from being a bar to the present suit. I think it must be conceded that proof in the Illinois case of such a contract as is alleged in the present bill would not have supported the bill in that case, and that, vice versa, proof of the contract there alleged would not support the bill in this case. The result is that the plea must be adjudged insufficient, and an order entered overruling the same, and granting defendant leave to answer under rule 34. Costs will abide the event of the suit.