Zimmerman v. So Relle, 862.

• Decision Date: 26 April 1897
• Docket Number: 862.
• Citation: 80 F. 417
• Parties: ZIMMERMAN v. SO RELLE
• Court: U.S. Court of Appeals — Eighth Circuit

80 F. 417

ZIMMERMAN v. SO RELLE

No. 862.

United States Court of Appeals, Eighth Circuit.

April 26, 1897

This suit was brought by Eugene Zimmerman, the appellant, against Wiley E. So Relle, the appellee, in the circuit court of the United States for the district of Colorado, on December 27 1895. For present purposes, it is unnecessary to state the averments of the bill in detail. It showed, substantially that a controversy had arisen between the parties to the suit, relative to the ownership of certain real estate situated in the town of Aspen, Pitkin county, Colo., to wit the southerly 75 feet of lots R and S in block 88, which had at one time been sold by Zimmerman to So Relle, and had thereafter been reacquired by Zimmerman at a trustee's sale, under a power of sale contained in a deed of trust that had been executed by So Relle to secure the payment of a part of the purchase money; that in equity the property belonged to Zimmerman, although it was at the time in the possession of So Relle; that the complainant's title derived through the aforesaid trustee's sale was defective, because the notice under which said sale had been made was not published for the requisite length of time: that, by virtue of such defect in the notice of sale, the complainant had not acquired at such sale a good legal title, under which a recovery could be had against the defendant by a suit in ejectment; that the defect in said notice of sale was due to the negligent and fraudulent conduct of the defendant, So Relle, who was an attorney by profession; and that, by virtue of such fraud and negligence, he was in law estopped from taking advantage of the defect in the plaintiff's legal title, and from further retaining possession of the property. In view of the allegations of the bill, the complainant prayed that 'the defendant may be decreed to be forever estopped from setting up or claiming any right, title, or interest whatsoever in and to said premises, or from in any manner claiming that said foreclosure, and the sale of said property thereunder, was illegal or insufficient, and that your orator may be decreed to have a good and perfect title to said premises, * * * and that any cloud may be removed which may rest upon the title of your orator to the said property, by virtue of any defect in said foreclosure sale or in the notice thereof. ' To the aforesaid bill the defendant below filed the following plea: 'And this defendant further says: That at the time of the commencement of said suit, and at the time when service of the writ of subpoena issued thereunder was attempted or pretended to be made upon this defendant, another suit was, and at all times herein mentioned has been, and now is, pending in the district court of Pitkin county, state of Colorado (No. 1,718), between the said Eugene Zimmerman and the said Wiley E. So Relle, involving the same subject-matter, and wherein similar relief was sought. That the said suit in the said district court of Pitkin county was commenced by filing a bill in equity on the 4th day of October, 1895, and wherein said Wiley E. So Relle is plaintiff, and the said Eugene Zimmerman, the Mortgage Trust Company of Pennsylvania, and Biddle Reeves are defendants. That summons and complaint was served upon each of the said defendants on the 5th day of October, A.D. 1895. That the subject-matter in said suit in said district court of Pitkin county is the title to the southerly seventy-five (75) feet of lots R and S in block 88 of the town site and city of Aspen, in Pitkin county, Colorado. That the relief sought therein is to quiet the title of said premises in the said Wiley E. So Relle, and for general relief, by injunction and otherwise. That on the 28th day of October, 1895, the said Eugene Zimmerman filed therein a notice of application to remove the said cause to the federal court, together with a petition and bond for removal. That on the 4th day of November, 1895, the separate answer of the said Reeves and the said Mortgage & Trust Company of Pennsylvania was filed therein. That on the 4th day of November, 1895, the said Eugene Zimmerman filed a demurrer to the complaint therein. That on the 14th day of November, 1895, the said Wiley E. So Relle filed a motion to make the answer of Reeves and the said Mortgage & Trust Company of Pennsylvania more specific. That on the 18th day of November, 1895, said Zimmerman filed therein his motion to withdraw his demurrer. That on the 12th day of December, 1895, a motion to dissolve an injunction issued in said cause was heard and overruled. That on the 30th day of December, 1895, said Zimmerman filed his separate answer therein. That on the 10th day of January, 1896, the said So Relle filed a demurrer therein. That on the 25th day of January, 1896, the said So Relle filed replications to the answers of the said Zimmerman, Reeves, and the said Mortgage & Trust Company of Pennsylvania. That on the 28th day of January, 1896, the said Zimmerman filed his motion to strike out the said replication. That on the 8th day of February, 1896, the motion of said Zimmerman to strike out the said replication was heard and overruled by the said district court in said Pitkin county. That on Wednesday, the 13th day of November, 1895, a motion of the said Eugene Zimmerman to docket the cause pending in the said district court of Pitkin county, and to file in the circuit court of the United States for the district of Colorado a transcript of the record from the said district court of Pitkin county, was heard by this honorable court, and, after the court was fully advised in the premises, the last aforesaid motion was overruled. That the said suit in the said district court of Pitkin county, Colo., is still pending, and is now at issue; and that adequate relief may be had by all parties therein. * * * Wherefore this defendant prays the judgment of this honorable court whether he ought to be required to appear in accordance with any writ of subpoena issued in said suit. ' To the foregoing plea, the defendant below interposed a demurrer, on the ground that it did not state facts showing any reason why the suit might not be prosecuted by the plaintiff, and for the reason that the plea was uncertain, defective, and ambiguous in stating the matters alleged to be involved in the litigation pending in the district court of Pitkin county, Colo. The trial court overruled said demurrer, whereupon the complainant asked leave to file a replication to said plea, which leave was denied, and the fill of complaint was thereupon ordered to be dismissed. The present appeal was taken from such order of dismissal.

Robert G. Withers and Charles J. Hughes, Jr., for appellant.

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

THAYER Circuit Judge, after stating the case as above, .

The plea which was filed by the defendant below, who is the appellee here, shows, we think, with sufficient certainty that the suit at bar and the suit previously brought in the district court of Pitkin county, Colo., by So Relle against Zimmerman, are substantially of the same character, the parties thereto being simply reversed. In the case pending in the state court So Relle is attempting to quiet his title against Zimmerman, who is claiming title to and possession of the premises in controversy by virtue of a...