Hughes v. Green

Decision Date31 January 1898
Docket Number914.
Citation84 F. 833
PartiesHUGHES v. GREEN et al.
CourtU.S. Court of Appeals — Eighth Circuit

W. J Roberts (Felix T. Hughes and H. R. Hughes, on brief), for appellant.

T. A Green, for appellees.

Before SANBORN and THAYER, Circuit Judges, and RINER, District Judge.

RINER District Judge.

This was a suit brought by Felix T. Hughes, the appellant, against Thomas A. Green, Edward B. Green, Thomas A. Green, Jr. Charles H. Green, and Amos V. Green, the appellees, in the circuit court of the United States for the district of Colorado, for an accounting, and to foreclose a mortgage on certain mining property located in Pitkin county, Colo. It is averred in the bill that the mortgage in controversy was executed by the defendant Thomas A. Green, and given to secure the payment of one certain promissory note for the sum of $3,925, and three certain assignments of an interest in a contract for attorney's fees, dated as follows : One for $10,000, dated March 31, 1893; one for $10,000, dated November 20, 1893; and the other for $1,500, bearing even date with the mortgage, viz. October 9, 1894. For the purpose of disposing of the question before the court upon this appeal, it is unnecessary to state the averments of the bill more at length. The record shows that on the 12th day of July, 1895, Felix T. Hughes, the plaintiff, brought a suit in the district court of Pitkin county against the defendant Thomas A. Green to foreclose this mortgage; that on August 15, 1895, he brought a suit in the circuit court of the United States for the district of Colorado against the same defendant, and asking the same relief; that on the 16th day of May, 1896, the defendant Green filed a petition in that case to dismiss it for the reason that a suit was then pending in the state court, brought by the same plaintiff against the same defendant, and concerning the same property mentioned and described in the bill therein. The circuit court sustained the motion to dismiss.

Thereafter, on May 29, 1896, and before the same had been set down for hearing, the plaintiff dismissed his suit in the district court of Pitkin county, the order providing that the dismissal should be without prejudice to the plaintiff's rights, and at his cost. June 16, 1896, the defendant Green presented a motion in the district court of Pitkin county to set aside the order dismissing the plaintiff's suit, which motion the court overruled, and the defendant thereupon took an appeal to the court of appeals of the state of Colorado. On the 29th day of June, 1896, the plaintiff filed his bill in the circuit court in the present suit. As filed originally, the suit was against Thomas A. Green alone, but by subsequent amendment the other defendants were made parties. July 15, 1896, the defendant Thomas A. Green filed a motion to dismiss the suit, for the reasons stated in his motion to dismiss the former suit, alleging in his motion that the suit in the state court was still pending upon his appeal from the order of that court denying his application to set aside the order dismissing plaintiff's case. On the 29th day of July, 1896, the circuit court sustained the motion to dismiss, and dismissed the bill at plaintiff's cost, and it is from this order dismissing the bill that the present appeal is taken.

The sole question presented by this record is whether the proceeding had in the state court was a bar to or abated the plaintiff's right to bring his bill asking for the same relief in the federal court. The law of Colorado upon the subject of the dismissal of actions is as follows:

'Sec. 166. An action may be dismissed or a judgment of nonsuit entered, in the following cases: First. By the plaintiff himself, at any time before trial, upon the payment of costs, if a counter-claim has not been made. If a provisional or ancillary remedy has been allowed, the undertaking shall thereupon be delivered by the clerk to the defendant, who may have his action thereon. Second. By either party, upon the written consent of the other. Third. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. Fourth. By the court, when upon trial, and before the final submission of the case, the plaintiff abandons it. Fifth. By the court, upon motion of the defendant, when upon the trial, the
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