MARINETTE SAWMILL CO. v. SCOFIELD, 174 F. 562

KOHLSAAT, Circuit Judge (after stating the facts as above). In the absence of any bill of exceptions, it may be assumed that the agreement set up in the answer is established. The circuit jttdge in his opinion says: “Here an agreement is relied upon whereby, upon a meritorious consideration, it was stipulated that no suit should be brought upon the judgment in the federal court at Chicago until the happening of a given event.” The record properly presented the question as to whether the pleadings support the finding and judgment of the court below. Slacum v. Pomery, 6 Cranch, 221, 3 L. Ed. 205; Lehnen v.

Dickson, 148 U. S. 71, 13 Sup. Ct. 481, 37 L. Ed. 373; World’s Columbian Exposition Co. v. Republic of France, 91. Fed. 64, 33 C. C. A. 333; Streeter v. Sanitary District, 133 Fed. 124, 66 C. C. A.

Section 1011 of the Revised Statutes (U. S. Comp. St. 1901, p. 715) reads: “There shall be no reversal in the Supreme Court or in a Circuit Court upon a writ of error, for error in ruling any plea in abatement other than a, plea to the jurisdiction of the court, or for any error in fact.” Plaintiff in error contends that the answer aforesaid did not constitute a plea in abatement, either in form or in substance. The strict rule of the common law in regard to the form of pleas in abatement does not prevail under the Wisconsin code practice. In Raymond v. City of Sheboygan, 70 Wis. 318, 35 N.

W. 540, the court" says: “Under the Code the defendant may unite in the same answer a defense which was formerly a plea in abatement, and one which was a plea in bar, and we suppose a plea in abatement or an answer in the nature of such a plea must be liberally construed with a view to substantial justice, like any other pleading.” We therefore conclude that as to matter and form the question of abatement is properly before the court. Roberts v. Lewis, 144 U. S. 656, 12 Sup. Ct. 781, 36 L. Ed. 579.

Whether this court may review the pleadings for the purpose of ascertaining the sufficiency of the plea was before the Court of Appeals for the Eighth Circuit in Green v. Underwood, 86 Fed. 427, 30 C. C. A. 162. A plea in abatement was filed setting up another suit pending in a state court. Demurrer to the plea was filed and overruled, and the suit was dismissed. On appeal the plea was pronounced bad in law and in substance, but the upper court held the action of the lower court unreviewable on writ of error, citing Piquignot v. Railroad Co., 16 How. 104, 14 L. Ed. 863, and Stephens v. Bank, 111 U. S. 197, 4 Sup.

Ct. 336, 28 L. Ed. 399. In Barnsdall v. Waltemeyer, 142 Fed. 418, 73 C. C. A. 515, the same court holds that, even though the Circuit Court may have erred in deciding that the facts did not constitute a good plea in abatement, that was a ruling upon a plea in abatement, and as such it could not be reviewed. So far as the courts have passed directly upon the question, the rule laid down in the foregoing cases is sustained.

Plaintiff in error cites a number of authorities to show that an oral agreement not to sue for a limited time upon a judgment cannot be set up by plea in abatement in an action at law upon the judgment, brought before the expiration of the time named in the agreement, and that the remedy, if any, is by suit for breach of contract not to sue, or by injunction. These cases hold unequivocally that an independent collateral contract not to sue for a limited time or until the happening of a stated event may not be pleaded in abatement. Gibson v. Gibson, 15 Mass. 106, 8 Am. Dec. 94; Reed v.

Stoddard, 100 Mass. 425; Newkirk v. Neild, 19 Ind. 194, 81 Am. Dec. 383; Nelson v. White, 61 Ind. 139; Williams v. Scott, 83 Ind. 405; Millett v. Hayford, 1 Wis. 411; Guard et al. v. Whiteside, 13 Ill. 7. There is, however, authority -for a more liberal application of the plea in abatement. In Culver v. Johnson, 90 Ill. 91, it is held that, “when an action is prematurely brought because of an agreement to extend the time of payment which has not elapsed, it is matter for abatement only * * * ” — citing Archibald v. Argall, 53 Ill. 307.

In the former case the agreement to extend was made afte"r the maturity of the note. In Moore v. Sargent, 112 Ind. 484, 14 N. E. 466, an agreement to extend time of payment of note was held, in an action to foreclose a mortgage, to be proper matter for plea in abatement.' In Millett v. Playford, 1 Wis. 401, the court held .that an. agreement to extend time of payment of two notes was properly taken advantage of by plea in abatement.

The contract set up herein shows the promise of extension of time to have been based upon and coincident with defendant in error’s consent that judgment should be entered against him without contest on his part. Here is not a mere case of indepénd-ent agreement. So far as an oral undertaking may enter into a judgment as between the same parties, this provision should be enforced. Franklin Savings Institution v. Reed, 125 'Mass. 365. The lower court dealt with the defense as in abatement. Under the authorities that was a ruling upon a plea in abatement, and therefore not reviewable.

The "writ of error is therefore dismissed. NOTE. — Tlie following is tlie opinion of Quarles, District -Judge, in the court below: QE ARLES, District Judge. This is a motion for leave to reargue ilie plea in abatement which some time since was sustained by the court. Objection is made that the court is powerless to entertain the motion, because the same was not made within two days after the decision of the court, as required by rule 22. This objection is not sound.

Rule 22 is not intended to impose a restriction upon the power of the court to grant a reargument in a case that has been heard by the court without a jury. It appearing that no appeal lies from an order sustaining a plea in abatement, I have been solicitous to ascertain whether m.v original conclusion was just. I have examined the authorities cited in the elaborate briefs of counsel, and have carefully reviewed the arguments.

For hick of time I cannot prepare an elaborate opinion, but must content myself with a short statement of the reasons why X feel constrained to adhere to the views orally expressed in disposing of this plea on a former hearing. Personally I would he glad to open a way to an appeal, but I cannot see-my way clear to change the conclusions originally reached. The proposition laid down by the plaintiff in argument is too broad, and would load to conclusions that are untenable.

The suggestion that, because under certain circumstances a bill in equity would lie to grant the desired result, therefore under no circumstances could the matter be pleaded in an action at law, is unsound. The fact that an equitable action would lie to vacate an instrument for fraud would not prevent the defendant from setting up the fraud as a bar to an action at law brought upon such instrument. The principles of pleading involved in tills ease are simple and not difficult of application. Neither has there been any change in the application of the rule since the time of Ohitty.

If any reason exists why"a suit at law ought not presently to be brought, such facts may bo brought to the attention of tlie court, without necessarily calling in question the merits of tlie cause of action. If such facts are from tlieir nature justiciable in a court at law, they may be suggested by a plea in abatement in the legal action. If, on the other hand, they involve considerations peculiarly within the jurisdiction of a court of equity, a resort to the equitable side of the court may be' necessary.

When, as here, the objection is predicated upon a simple agreement, there is no reason why the parties should he driven to resort; to the chancery side of the court. Here an agreement is relied upon whereby, upon a meritorious consideration, it was stipulated that no suit should be brought upon the judgment ill tlie federal court at Chicago until tlie happening of a given event. When, contrary to the spirit and letter of such stipulation, a suit at law is brought upon such judgment, I can see no reason why a plea in abatement is not sufficient to raise the contention.

There is no merit in the suggestion that the Supreme Court of Wisconsin in the case cited has invoked a modern and different application of these simple rules. Mr. Justice Marshall bases his opinion upon a paragraph quoted from Ohitty on Pleading and upon other early authorities. I have examined with some care the two cases cited by plaintiff which were supposed to rule in this ease. It is ti-ue that the caso of Moore v.

Barclay, 16 Ala. 158. involved a question whether a judgment that had been entered by confession could be enforced, notwithstanding an oral agreement that no execution should issue except upoii the happening of a certain event. Without entering into the details; the facts suggested to the court were complicated and of such a nature that it was impossible for a- court of law to render any judgment thereon, as is expressly stated in the opinion. The rights and equities of the respective parties were such that a resort to. chancery was absolutely necessary.

The reasoning of the court clearly indicates that, if it had been an action at law to sue the judgment over, a suitable legal defense might have been interposed. The casé of Walker v. Kendall; 3 Ky. 312, when carefully studied, throws no light upon this controversy. It Is true that it arose,in a case where a suit was brought to sue over a former Judgment; but no sufficient plea in abatement was interposed. ' The plea that was entered by the executor was plene ad-ministravit, which at law is a well-known plea in bar.

Interjected into this plea, however, was an allegation that the defendant was induced to allow the judgment to be entered by a promise that it should not be enforced until the happening of a certain event. The plea was objected to as being double. It was ruled as a plea in bar, as, Indeed, it must have been. The averments which might well have' been framed into a plea in abatement were merged in the plea in bar, and lost their identity and were of no avail. I also adhere to the former ruling on the second proposition.' The oral agreement relied upon was broad and explicit in its terms.

In order to secure the Injunction, it was necessary only to interpose by way of stipulation a portion of such original agreement. It was not intended to supersede the original engagement, but merely to carry the same out pro tanto. I do not feel at liberty to ignore so much of the oral understanding as it became unnecessary to frame in the written stipulation. For these reason* the motion for reargument will be denied.