Ex parte LENNON, 64 F. 320

SEYEEENS, District Judge, having stated tbe case as above, delivered the opinion of the court. In exercising its jurisdiction upon this petition, the circuit court ivas bound to observe the well-settled rale that the. writ of habeas corpus does not perform the office of a writ of error or an appeal, in respect to the matters of fact involved in the proceedings complained of.

If, in those proceedings, the court had jurisdiction of the subject-matter and of the person, the validity of its judgment cannot he collaterally attacked on this writ for error in the original suit, nor can the truth of the facts there found be controverted in the new and collateral proceedings. Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77; Cuddy, Petitioner, 131 U. S. 280, 9 Sup. Ct. 703; Savin, Petitioner, 131 U. S. 264, 9 Sup. Ct. 699; In re Tyler, 149 U. S. 167, 13 Sup. Ct. 785; U. S. v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746. In the latter case it was said by Mr.

Justice Jackson, in delivering the opinion of tbe court, that “under a writ of babeas corpus tbe inquiry is addressed, not to errors, but to tbe question whether tbe proceedings and tbe judgment rendered therein are for any reason nullities; and, unless it is affirmatively shown that tbe judgment or sentence under which the petitioner is confined is void, be is not entitled to bis discharge.” See, also, Church, Hab. Corp. 227; Turner v. Conkey, 132 Ind. 248, 31 N. E. 777. This court is, of course, bound by the same rule in determining the case on appeal.

If the conviction and punishment ordered by the court were not open to an appeal, it was none the less final on that account. In the case of Johnson v. Wharton, 152 U. S. 252, 14 Sup. Ct. 608, the defendant sought to obviate the conclusive effect of a former judgment between the same parties in a suit tried and determined in a circuit court of the United States, upon the ground that the amount of that judgment was too small to enable the defendant to obtain a review in a court of error. The defendant was, however, held concluded by the former judgment, Mr.

Justice Harlan, delivering the opinion of the court, saying that “the question is not controlled by the inquiry whether the judgment in the first action could be reviewed upon appeal or writ of error.” In that opinion the rule was spoken of as a general one, “having its foundation in a wide public policy, and deeply imbedded in the jurisprudence of all civilized countries, that the final judgment of a court — at least one of general jurisdiction — competent, under the law of its creation, to deal with the parties and the subject-matter, and having acquired jurisdiction of the parties, concludes those parties and their privies in respect to every matter put in issue by the pleadings and determined by the court.” The errors assigned by the petitioner are four in number.

The first is that the court erred in holding that there was a federal question presented by the bill of complaint, and that on that account it had jurisdiction of the case in which the order of injunction was issued. In support of this assignment it is argued that although the bill avers the citizenship of the complainant to be in the state of Michigan, and that of the defendants to be in .other states, yet that it was subsequently developed in the proof that the Michigan Central Kailroad Company, one of the defendants, was a citizen of Michigan, instead of Ohio, as alleged in the bill.

While this is not technically a federal question, and so not strictly within the assignment of error, we shall disregard the variance. It may well be doubted whether, in view of the fact that defective and insufficient allegations of .citizenship in the pleadings do not render the proceedings and judgments of the circuit courts absolutely void, but only voidable on error or appeal, the petitioner has any standing on which he can collaterally attack the jurisdiction on such ground, and set up for himself the privilege of determining that question for the court, and thereupon treat its mandate as void.

Kemp’s Lessee v. Kennedy, 5 Cranch, 173; Skillerns v. May’s Ex’rs, 6 Cranch, 267; Cameron v. McRoberts, 3 Wheat. 591; McCormick v. Sullivant, 10 Wheat. 192; Ex parte Watkins, 3 Pet. 193. These and other later cases are reviewed in Dowell v. Applegate, 152 U. S. 327, 14 Sup. Ct. 611, where it was declared that the doctrine had been already established that a judgment or decree of a circuit court of the United States cannot be collaterally assailed, or treated as a nullity, even though its jurisdiction as to citizenship do not appear on the record.

But there can be no doubt whatever that, so far as concerns the petitioner, the court had jurisdiction of the case. If the citizenship of the Michigan Central Kail road Company was not as stated in the bill, it was the privilege of that defendant to raise the question, and have the bill dismissed as to it, and thereupon the suit could proceed against the other defendants. Horn v. Lockhart, 17 Wall. 570.

Upon the record,-the requisite citizenship existed. ft could not be tolerated that the itetitioner should, upon an assumption that the bill would be challenged and disproved in this particular, undertake to defy an order of the court to which he was subject. But, independently of the citizenship of the parties, the case was one in which the complainant sought to enforce rights secured to it by a law of the United States; Unit is to say, the interstate commerce act.

Although some criticism of the allegations of the bill in that regard is made by counsel for petitioner in the second branch of the argument on this head, and although it may be admitted that the pleading is not very precise, yet we think it sufficiently appears from the bill that the complainant therein set up rights accorded to it by that act, and sought relief from the court against their threatened violation. The contention, therefore, that the court had no jurisdiction of the case in which the proceedings for contempt took place, is not sustained.

Secondly, it is assigned as error that. t%e court found that petitioner had such notice and knowledge of the order of injunction as to be punishable for a violation of its provisions. The argument is that — • First, the petitioner was not a party to the suit; and, second, that he was not served with the order of injunction, or with a copy of it. As to this, it is not necessary that one should be a party to ¿lie suit in which an injunction issues, in order to render him liable to punishment for a violation of it.

Any person who, having notice that such an order has been made against a party to the suit, aids and assists that party in its violation, is as much amenable to proceedings for contempt as if he were a parly named in the record. Wellesley v. Mornington, 11 Beav. 181; Rorke v. Russell, 2 Lans. 242; High, Inj. § 1435. This rule is of peculiar application where the actual party is a corporation, for in such case the act enjoined, if done at all, must be done by some officer, agent, or servant to whose province the particular act relates.

In Hie present case, the conduct imputed to the petitioner was one actively and directly impelling the Lake Shore & Michigan Southern Bailway Company, whose servant he was, to the; violation of the order of the court. In respect to the objection that he was not served with the injunction, or a cony of it, it is to be said, also, that this was not necessary. If he had notice; of the fact that i!; was ordered, that was enough. High, Inj. § 1422, and cases there collected. But it is contended that the evidence on the hearing in the proceedings for contempt did not prove that he had such notice.

This question was raised and fully litigated on that hearing, and the court held against the petitioner. We- are very strongly inclined to think that the question was concluded by that finding. But if that point were still open in the case, upon the suggestion that the court could not acquire jurisdiction over the petitioner without evidence of the necessary fact by simply deciding that it had such jurisdiction, reference to the proof which is in the present record shows that there was ample evidence from which the court could have found that the petitioner had notice of the order.

It. is claimed that the evidence showed that the petitioner, when required to take the objectionable car into his train, quit the service of his employer; but the evidence showed that he was shortly after in its service, and it was a question for the court whether his quitting was actual or otherwise. It is therefore unnecessary for us to discuss the question under what circumstances a locomotive engineer may quit the service of his company. The third and fourth assignments of error are concluded by what has already been said.

They are that the court “erred in holding that the acts set out in the affidavit were in violation of the order of injunction,” and that “it erred in holding that under the facts, as stated in the bill, in connection with those set forth in the affidavit and those proven at the hearing, a court of equity had jurisdiction to issue the injunction which was issued in the case, and to punish appellant for contempt in disobeying its command.” It is manifest that these are, in substance, mere allegations of error in the findings of fact and law by the court in the proceedings for contempt; and, under the rule preliminarily referred to in this opinion, they were not reviewable in the court below in this proceeding, nor can they be reviewed here.

If there be an exception to this proposition in the fourth assignment, in so far as it refers to the jurisdiction of the court, it is covered by the points already decided. The question is much discussed by' counsel for the petitioner in their .brief whether the court could rightfully award what is termed a “mandatory injunction” in the principal case. Whatever objection there might be to this, it touches, not the jurisdiction, but the propriety of its exercise upon the then existing facts.

Undoubtedly, a court of equity has authority to order an injunction of that kind. ■ Whether it should do so in a given case is a matter depending upon its view of the facts, and, even though there should be error in the decision, that does not affect the validity of the order. It must be respected until reversed. The power and duty of the court in ordering such a writ were fully considered in an opinion delivered by Judge Taft upon a motion for an injunction against still other parties in the original suit out of which the present proceeding issued. Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 730.

We abstain from any consideration of the subject now, for the reason that that branch of the case has been brought here for review, and because, also, we are of opinion that the question whether the order here involved was a proper one, in the circumstances, cannot be collaterally reviewed in this proceeding. It follows that the order appealed from should be affirmed. The appeal in this case has been voluntarily dismissed since this opinion was filed.