LESLIE v. TOWN OF URBANA, 56 F. 762

JENKINS, Circuit Judge. Tbis cause comes before us upon appeal from tbe decree of the court below sustaining a demurrer! to tbe bill of complaint, and dismissing tbe bill for lack of equity. !

Tbe bill charges that in 1867 tbe appellee issued its bonds to tbe amount of $100,000 in aid of tbe Danville, Urbana, Bloomington & Pékin Railway Company, afterwards known as tbe Indianapolis, Bloomington & Western Railway Company, in payment of its subscription to tbe stock of such railway corporation; that the appellant, prior to tbe maturity of tbe bonds, purchased in open market seven of such bonds, which be caused to be duly registered with tbe state auditor in 1872; that in 1878 tbe appellant brought bis suit at law in tbe court below to recover tbe amount of those bonds.

Several other holders of tbe bonds, at about tbe same time, brought their suits at law in that court to recover upon tbe bonds respectively held by them. Demurrers were interposed, urging tbe invalidity of tbe law under which tbe bonds purported to be issued. Tbe demurrer in tbe case of tbe appellant was sustained by Judge Drummond upon tbe supposed authority of Township of Elmwood v. Marcy, 92 U. S. 294. Tbe appellant’s case was selected to be taken by writ of error to tbe supreme eourt of tbe United States as a test ease, ilie others remaining pending in the lower court on motions for new trial.

The supreme court of the United States affirmed the judgment in the appellant’s case by a divided court, Mr. Justice Mali hews not sitting. Subsequently the court below, Mr. Justice Harlan presiding, granted new trials in the other cases, and rendered judgment in favor of the plaintiffs, holding the bonds valid. One or more of these judgments was taken by the town to the supreme court, and the judgment affirmed by a divided court, Mr. Justice Mai thews not sitting. All of the bonds issued by the town by virtue of these and other judgments have been paid, except those owned by ¡he appellant.

The bill charges that the only reason for the nonpayment of the complainant’s bonds “was the error of Judge Drummond in applying the law to the case, and Ms mistake of the attitude of the United States supreme court on the question involved, as shown beyond a doubt by the decisions of that court continually from that lime to the present on the curative act question, wMeh was the only question, involved in that case.” The bill seeks to have the judgment in the case at law reviewed and rem-m!, and for a decree that the judgment on demurrer in the case at law be held null and void by reason of the mistake and error in law of the court, and for a decree adjudging the bonds to be valid, and lor judgment upon them.

This bill is unique. We are solemnly asked to reverse a judgment at law rendered by a court having jurisdiction of the parties and of the subject-mat I er. and affirmed upon writ o! error by the supreme court bf the United States. It is said that a judgment of affirmance by a divided court is of no binding force, and is a mere mistrial. That is a mistake. Such affirmance is as effective between the parties, and in respect of the matter involved, as though it passed by the unanimous decision of the court.

This MU can be sustained only by annulling the whole doctrine of res judicata, and by declaring that no judgment is conclusive so long as the pajiles may see fit to litigate the questions involved. Indeed, counsel boldly asserted at the bar that no judgment was conclusive so long as it appeared to the conscience of the chancellor to be unjust. The decision of one chancellor even would be inconclusive, so long as there remained another chancellor to review a previous decision. This doctrine would abolish the binding efficacy of all judgments, and establish anarchy in the administration of the la,w.

Chaos is no remedy for the occasional injustice of fallible human judgment. The bill is without principle to support it, and without precedent to recommend it. Affirmed,