GARNER v. SECOND NAT. BANK OF PROVIDENCE et al., 67 F. 833

PUTNAM, Circuit Judge. Evidently, the controversy in the circuit court in this case related to two points only, namely, whether the complainant (now the appellant) was entitled to dismiss so much of her bill as related to the rents and profits, and whether it was in the power of the circuit court to enjoin the proceedings in the state court, under the circumstances of the case. As to the first question, it is the settled practice that by a decree on the merits, like that of January 23, 1894, the party defendant acquires such an interest in the suit that the plaintiff cannot discontinue as of right. Gregory v.

Pike (decided by this court Jan. 31, 1895) 67 Fed. 837. In order to obtain an order allowing such discontinuance, if such an order can ever properly be entered, after an interlocutory decree (Skip v. Warner, 3 Atk. 558; Egg v. Devey, 11 Beav. 221), some equity therefor must be shown. In the present case the expense and time involved in the litigation which resulted in the decree referred to, independently of other considerations, render it grossly inequitable to permit such disposition of any part of the suit as would make possible a new contest over any question at issue.

With reference to the other question, the appellant relies on

section 720 of Bevised Statutes. But it is now so' thoroughly settled that this provision of law does not apply to proceedings incidental to jurisdiction properly acquired by a federal court for other purposes than that of enjoining proceedings in a state court, that the proposition needs no discussion by us. These observations dispose of all substantial questions in the case, and, indeed, of all the questions raised in the court below; but two incidental questions touching the regularity of proceedings were suggested at the bar.

One grows out of the fact that the court below proceeded to a final decree, which was not based on the master’s report; and the other is that, in- the final decree, affirmative relief was given against the plaintiff, not based on any cross bill, directing that the plaintiff be enjoined perpetually from prosecuting her suit in the state court, and that she dismiss it. As these irregularities, if they are such, were not objected to in the court below, are not in terms covered by the assignment of errors, and are not shown to work substantial injustice, this court cannot be required to consider them.

The authorities show clearly that the circuit court had power to restrain the plaintiff from commencing or prosecuting the suit in the state court under the circumstances. The leading case (Mocher v. Reed, 1 Ball & B. 318, decided in 1810) has always been held a sufficient authority. But, when issued against a plaintiff, the restraining order has been on

summary proceedings; and, so far as we can perceive, the order has been of an ad interim character. Harrison v. Gurney, 2 Jac. & W. 563. In this case the form directed by Lord Eldon appears, and it ran “until further order.” But in the case at bar the interlocutory decree in the circuit court was entered June 23, 1894, and the appellant brought her suit in the state court in October, 1894. Under those circumstances, the bringing of the suit without leave was, according to Mocher v. Reed, ubi supra, in contempt of the circuit court. To the same effect is Story, Eq.

Jur. § 889, though it: seems the power to compel the complainant to make an election, and the corresponding right to elect, ended with the entry of the interlocutory decree. That court had, therefore, power to require the purging- of the contempt by a dismissal of the suit. In the absence of any specific objection to the form of proceedings, the appellant was not prejudiced by the fact that this was incorporated in the decree, instead of being made the basis of a separate order.

The order to dismiss was, of course, of such effective character that the order not to prosecute, contained in the same interlocutory decree, was immaterial. On the whole, in this particular, the case is met by the rule explained by this court in King v. Hospital, 12 C. C. A. 139, 64 Fed. 325,-—that irregularities, if any exist, not substantially prejudicial, and not brought to the attention of the court below, do not furnish ground for reversal. These observations also apply to the proposition that the court below did not proceed on the master’s report, even if it were proper or necessary that it should do so.

The appellant did not, either absolutely or in an alternative form, insist that it should. She resisted all proceedings, and took no note of the method. Her assignment of errors, fairly construed, object only to the making of an award in her favor, and raise no question as to the amount. The master’s report could have been of use only with reference to the gum to be awarded, and therefore the assignment of errors does not touch it.

It is clear the appellant’s effort was to get wholly out of the circuit court, so far as an accounting was concerned, and she limited the issue to that purpose alone, and persistently refused to present the master’s report, or offer proofs as to the amount of rents and profits; and it would he inequitable to allow her to raise other issues on appeal, under the circumstances, explained. The assignment objecting that the decree was entered against Shippee and Allen is clearly not available. It would have been an irregularity not to have entered a decree for or against them.

Beyond that, the point is covered by the general propositions which we have already stated. On the whole, the appellant had her day in the circuit court, and refused to make use of it. We cannot be required to give it to her again, and there is no substantial equity appearing in the record which would justify us in doing it The decree of the circuit court is áffirmed.