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objection that it is multifarious. Brown v. Guarantee Trust Co., 128 U. S. 403, 410, 9 Sup. Ct. 127, 32 L. Ed. 468.

To the bill of complaint the appellant in the court below interposed a plea in abatement, setting up the pendency of an action in the state court, commenced by the plaintiff in this action and the defendant Dora May Seeley against the appellant and the defendant Ernest B. Tull in the superior court of the state of Washington, for a partition of the property mentioned and described in the complaint herein; that upon the petition of the appellant the action was removed to the Circuit Court for the District of Washington, and thereafter a decree was rendered in said court adverse to the appellant; that thereupon the case was appealed to this court, and upon a hearing the case was remanded to the Circuit Court, with directions to remand said cause to the superior court of the state of Washington (German Savings & Loan Society v. Dormitzer, 116 Fed. 471, 53 C. C. A. 639); that said remanding order has never been made by the Circuit Court in accordance with the order of this court. It appears from the opinion of this court in that case that the petition for the removal of the cause from the state court to the United States Circuit Court was insufficient, for the reason that the case presented no separable controversy, nor did such diverse citizenship exist as would confer jurisdiction upon the Circuit Court. It is contended by the appellant that the plea setting up the pendency of the action in the state court should have been sustained as a bar to the maintenance of the present action, and that the bill should have been dismissed. The pendency of a suit in a state court between the same parties cannot be pleaded in abatement of a suit for the same cause in a federal court. Stanton v. Embrey, 93 U. S. 554, 23 L. Ed. 983; Insurance Co. v. Brune's Assignee, 96 U. S. 588, 592, 24 L. Ed. 737; Gordon v. Gilfoil, 99 U. S. 168, 178, 25 L. Ed. 383; Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 200, 109 Fed. 504.

The next question to be considered is the validity of the judgment of the state court upon which the present proceeding for partition is based. The judgment and all the facts connected therewith are fully set forth in the case of Dormitzer v. German Savings & Loan Society, 23 Wash. 132, 62 Pac. 862, and in the same case on writ of error to the Supreme Court of the United States, 192 U. S. 125, 24 Sup. Ct. 221, 48 L. Ed. 373. But it appears further that the appeal from the judgment of the superior court to the state Supreme Court was taken in the May term, 1900; that the appeal was docketed on the 7th of May, and set down for argument on May 16th; that the appeal was not orally argued, but submitted on briefs of counsel; that at the last-named date the Supreme Court consisted of Judges Dunbar, Reavis, Anders, Fullerton, and Chief Justice Gordon; that afterwards, on May 20th, Chief Justice Gordon resigned; that his resignation was accepted June 1st, and that on June 5th William White was appointed judge to fill the vacancy caused by the resignation, and took the oath of office, and entered upon his duties; that thereafter the case was taken under consideration by the court, and on November 7, 1900, the

opinion in the case written by Judge White was filed, in which two of the four judges concurred, and from which two dissented. The opinion recites that:

"The judgment and decree of the lower court are reversed, with costs to appellants. The cause is remanded to the court below, with instructions to enter a judgment and decree herein adjudging and decreeing that Dora May Dormitzer, William L. Tull, and Ernest B. Tull, the appellants herein, are entitled to an unincumbered undivided one-half of the real estate described in the pleadings in this action, and that the guardian deeds described in said pleadings and orders of the probate court of Sopkane county directing the sale of said one-half' interest, or in any way affecting the same, and the said guardian deeds conveying the same to F. M. Tull by P. D. Tull, as guardian of said appellants, as set out in the pleadings, be declared fraudulent, null, and void ; and also decreeing that the plaintiffs in the action below re cover their costs."

Thereafter the respondents filed a petition for rehearing in the Supreme Court of the state in which the facts just stated were called to the attention of the court in support of the contention that Judge White was not present and sitting as a member of the court when the case was submitted for decision, and, with respect to the four judges who were present and sitting as members, they were equally divided in opinion, and, as a consequence, the judgment of the court below should have been affirmed. On January 7, 1901, the petition for a rehearing was denied, and the cause remanded to the superior court for further proceedings in accordance with the opinion. Thereafter, and on January 25, 1901, the respondent moved the Supreme Court to modify its order and decree so as to leave open for investigation and adjudication in the superior court all questions relating to rents, issues, and profits of the premises, and all questions as to the value of permanent improvements placed upon said premises with moneys borrowed from respondent as mortgagee, and all moneys advanced and paid by respondent for the proper and necessary repairs and maintenance of said premises, and for all moneys paid by respondent for taxes and local assessments upon said premises for street and sidewalk and other local improvements made and charged upon said premises. This motion was denied March 19, 1901. While this motion was pending in the Supreme Court, the superior court, on March 2, 1901, entered its judgment and decree pursuant to the decision and decree of the Supreme Court. Thereafter appellant presented its petition to the Supreme Court of the United States for a writ of error, citation, and other process directed to the Supreme Court of the state of Washington, to the end that the judgment of the latter court in this cause might be corrected. This petition was allowed. A writ of error was issued, and the records and proceedings in the cause were certified to the Supreme Court of the United States for inspection and correction of the judgment upon errors assigned. Among others, it was assigned as 'error that the decision of the Supreme Court of the state of Washington lacked the concurrence of a majority of the said court, as constituted at the time of the hearing of said cause, and its submission to the said Supreme Court for its determination; wherefore it was alleged the said decision was null and

void, and in violation of article 5 of the amendments to the Constitution of the United States, which provides that no person shall be deprived of life, property, or liberty without due process of law. It was also assigned as error that the decision of the Supreme Court of Washington was entirely aside from and outside of the issues raised by the pleadings and record in the cause, and was therefore null and void, because it in effect took the property of the appellant without due process of law, in violation of article 5 of the amendments to the Constitution of the United States. The case was heard in the Supreme Court of the United States on a motion to dismiss and on the merits. The motion to dismiss was based upon the ground that the federal question involving the constitutional rights of the appellant was not set up in the court below. This motion was overruled, the case was considered on the merits, and the decree of the Supreme Court of Washington was affirmed. The effect of this affirmance was that none of the claims of error were well founded. Mutual Life Ins. Co. v. Hill, 193 U. S. 551, 24 Sup. Ct. 538, 48 L. Ed. 788.

Notwithstanding these proceedings, appellant contends that the judgment of the Supreme Court of the state of Washington is not conclusive, and cites the case of Reynolds v. Stockton, 140 U. S. 255, 11 Sup. Ct. 773, 35 L. Ed. 464, as establishing a doctrine authorizing this court to disregard that judgment. We do not so understand that case. It was there contended that the Court of Chancery of the state of New Jersey had refused to give effect to section 1 of article 4 of the Constitution of the United States, providing that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." The judgment to which full faith and credit had not been given in that case was a judgment of the Supreme Court of the state of New York. The Supreme Court of the United States, referring to the constitutional provision, and applying it to the judgment in question, said:

"It does not demand that a judgment rendered in a court of one state. without the jurisdiction of the person, shall be recognized by the courts of another state as valid, or that a judgment rendered by a court which has jurisdiction of the person, but which is in no way responsive to the issues tendered by the pleadings, and is rendered in actual absence of the defendant, must be recognized as valid in the courts of any other state."

It appears that the defendant in the New York suit appeared in the action, and filed an answer to the complaint, but took no further part in the proceedings, and was not present at the trial. Referring further to this feature of the case, the court said:

“Nor are we concerned with the question as to the rule which obtains in a case in which, while the matter determined was not in fact put in 'issue by the pleadings, is apparent from the record that the defeated party was present at the trial, and actually litigated that matter. In such a case. the proposition so often affirmed that that is to be considered as done which ought to have been done, may have weight, and the amendment which ought to have been made to conform the pleadings to the evidence may be treated as having been made. Here there was no appearance after the filing of the answer, and no participation in the trial or other proceedings. Whatever

may be the rule where substantial amendments to the complaint are permitted and made and the defendant responds thereto, or where it appears that he takes actual part in the litigation of the matters determined, the rule is universal that where he appears and responds only to the complaint as filed, and no amendment is made thereto, the judgment is conclusive only so far as it determines matters which by the pleadings are put in issue."

In the present case the appellant took actual part in the entire proceedings in the Supreme Court of the state, and upon a writ of error litigated the questions in controversy in the Supreme Court of the United States. In our opinion, those questions are now res adjudicata, and beyond the reach of collateral attack. The judgment of the Supreme Court of the state and the judgment of the superior court of Spokane county entered in pursuance of that judgment must be treated as valid, and binding upon the parties.

The remaining question involved in this appeal relates to the scope of this judgment with respect to certain improvements placed on the property by F. M. Tull. To determine this question a clear understanding must be had of the relation of the appellant to the property at the time the judgment was entered, on March 2, 1901. Passing over the earlier dealings between F. M. Tull and the appellant, we come to the transactions and proceedings which, as a purchaser, placed appellant in the possession of the property, and which possession it held at the time of the judgment. On May 5, 1892, F. M. Tull executed a mortgage on this property to the appellant to secure a promissory note for the sum of $100,000. This amount represented two prior notes secured by mortgages on the same property, amounting to $75,000, and a further loan at that time of $25,000. A second mortgage was executed by F. M. Tull on the same property in favor of the appellant on July 10, 1893, to secure a further loan of $20,000. Tull defaulted in the payment of the interest on these two mortgages in 1894. At that time the improvements now in controversy had been placed upon the lots by Tull with the money borrowed from the appellant. The appellant proceeded to foreclose these mortgages, and at the foreclosure sale on April 23, 1896, became the purchaser of the real estate and improvements, and obtained possession of the property. It was this possession and the rights obtained by the appellant as a purchaser at the foreclosure sale that it had at the time of the judgment. In the judgment and decree entered in the superior court of Spokane county on March 2, 1901, pursuant to the judgment of the Supreme Court of the state, these mortgages executed by Tull to the appellant were declared fraudulent, and of no effect, and were canceled and set aside so far as they, or either of them, in any way affected or created any right to or lien upon the undivided one-half right, title, or interest of William L. Tull, Dora May Dormitzer, and Ernest B. Tull in and to said premises. It was further adjudged that the appellant obtained no title to said undivided one-half of said premises as against the plaintiffs in that suit and Ernest B. Tull by reason of the foreclosure of said mortgages and the purchase of the premises at foreclosure sale. It was further adjudged and decreed that William L. Tull, Dora May Dormitzer, and Ernest B. Tull, as heirs at law of Lucy A. Tull, were the owners of and entitled to (share and share alike) an undivided one

half of the lands and premises in controversy, together with the tenements, hereditaments, and appurtenances thereto belonging, free and clear of all incumbrances, and free from any right, title, or decree of the appellant in, upon, or to said undivided one-half. The principal question before the court was the lien of these two mortgages upon the undivided one-half interest of the Tull heirs in the property in controversy, and the title to that interest acquired by the appellant at the foreclosure sale. And it was to remove these incumbrances from that interest that the judgment and decree was directed. There were other questions relating to prior transactions concerning the property that were necessarily considered and determined in reaching the final question at issue. But, aside from appellant's petition for a rehearing in the Supreme Court, and its motion to modify the order and decree of that court, we do not find that anywhere or at any time the equitable rights now insisted upon by the appellant with respect to the improvements placed upon this property were submitted to the state court for consideration, or that they were considered or determined by that court. It is true that in the petition for a rehearing appellant represented to the court, among other things, the inequity of decreeing to the Tull heirs the ownership of one-half of the premises without requiring them to submit to an equitable accounting for the money advanced by the appellant for the erection of the buildings upon the premises, and it was represented that an accounting for the money thus advanced might be allowed, either upon such a partition of the premises as would give to the appellant the reimbursement of its proper proportion of the cost going into the half interest of the heirs in such buildings, or, if the property could not be partitioned, that it be sold, and out of the proceeds of the sale such fair and equitable division be made between the parties as the court of equity might determine. Appellant's motion to modify the order and decree was for the purpose of leaving these asserted equitable rights open for further adjudication. But that was not a suit in partition, and the denial of the petition for a rehearing in that case upon that ground did not determine that the appellant could not set up its equities in a partition suit. There was nothing in the pleadings or in the judgment that called for a determination of that question, and the most that can be said of the effect of the denial of the petition for a rehearing was that the court was of the opinion that the equities claimed by appellant were not within the issues of that case.

The conclusions which the writer of this opinion draws from the foregoing proceedings in the state court do not meet with the approval of his associates. What follows is therefore the opinion of only one member of the court.

The present action is a suit in partition, and all the rights of the parties have been put in issue for trial and determination. Ballinger's Ann. Codes & St. Wash. § 5563. The buildings on the lots were erected by F. M. Tull with money borrowed from the appellant. The allegations of the bill that Tull and the appellant acted in bad faith in these transactions are not supported by the evidence. We agree with the judge of the Circuit Court that the parties acted in good faith.

He says:

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