APPLETON et al. v. MARX et al., 62 F. 638

PARDEE, Circuit Judge (after stating tke facts as above). Appellants assign as error to be corrected in tkis court tkat tke court below sustained appellees’ plea and dismissed tke bill and amended bills, wken tke court ougkt to kave rendered a decree overruling tke plea, and giving tke complainants, appellants kere, tke relief prayed for in tke bill and amended bills, and, as tkey allege, sustained by tke evidence. “At tke kearing, upon a plea in equity and a general replication, no* fact is in issue but tke truth of tke matter pleaded.” Farley v. Kittson, 120 U. S. 303, 7 Sup.

Ct. 534. “Tke plaintiff may set down tke demurrer or plea to be argued, or ke may take issue on tke plea. If, upon an issue, tke facts stated in tke plea be determined for tke defendant, tkey skall avail kim as far as in law and equity tkey ougkt to avail kim.” Equity Rule 33. “Wken a plea in bar meets and satisfies all tke' claims of tke bill, and it is sustained, it will, under equity rule 33, avail tke defendant so far as to require a final judgment in kis favor.” Horn v. Dry Dock Co., 150 U. S. 610, 14 Sup.

Ct. 214. “At tke kearing upon a plea in equity and a general replication, if tke plea be overruled, tke defendant must be assigned to answer tke-bill by tke next rule day.” Equity Rule 34; Farley v.

Kittson, supra. “Tke proper office of a plea is not like an answer admitting all tke allegations of tke bill, nor like a demurrer admitting tkose allegations, to deny tke equity of tke bill; but it is to present some distinct fact wkick of itself creates a bar to tke suit or to tke part to wkick tke plea applies, and tkus to avoid tke necessity of making tke discovery asked for, and tke expense of going into tke evidence at large. Mitf. Eq. Pl. (4th Ed.) 14, 219, 295; Story, Eq. Pl. §§ 649, 652.” Farley v. Kittson, supra. Farley v.

Kittson is also authority for tke proposition tkat, unless new matter is alleged in tke plea, even if tke plea be put at issue, it raises no question but questions of law.

Tke evidence skows tkat tke judgments of tke county court of Bowie county, Tex., approving tke accounts filed tkerein by Joseph Marx as temporary administrator of James Strong, deceased, were not only appealed to tke district .court, but tkat tke appeals were duly prosecuted, and judgment had thereon, in tke said district court, by wkick tke two reports filed February 5th, wkick related to tke general accounts of Joseph Marx, administrator, were disapproved and disallowed, and judgment in tkat behalf given in favor of plaintiffs, sustaining their objections to said two reports, and that the report of February 20, 1886, which purported to show the amount of funds of said estate on hand at the date of the same to be $15,340, and asking an allowance of 5 per cent, for receiving said moneys, was allowed and approved only as to allowance of said commission of $767.

As there is no doubt about the jurisdiction of the district court of Bowie county, Tex., in the matters shown to have been appealed thereto from the county-court, the plea, so far as it attempts to establish that the complainants are barred of their action because there had been a full and final accounting in the county court of Bowie county, is not supported by the evidence.

Whether the district court of Bowie county had original jurisdiction to accept the bond of complainants, and thus end the judicial administration of Strong’s estate, we do not feel called on to decide, because it is a question not properly presented for consideration at this time, and because it seems that, whether the administration be closed or still pending in the state court, the complainants’ suit may be prosecuted. Payne v. Hook, 7 Wall. 431; Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906.

The conclusion which we reach in the matter of the plea is that, so far as it is intended to meet any of the claims of complainants’ bill, it is not sustained by the evidence, and ought to have been overruled. The decree of the circuit court appealed from is reversed, and the cause is remanded, with instructions to enter a decree overruling the defendants’ plea, and with costs, and assigning the defendants to answer by the following rale day.