MacVEAGH v. DENVER CITY WATERWORKS Co. et al., 85 F. 74

PER CURIAM. The circuit court overruled a demurrer (o a plea In chancery, and dismissed the bill of complaint, denying the complainant leave to reply to the plea. Thereupon the complainant below appealed. It is eoncc-ded by tlw; appellees Hint the court erred in refusing leave to reply to the plea, and that (he decree must be reversed for that reason, on the authority of Zimmerman v. So-Relle (recently decided by this court) 49 U. S. App. 387, 25 C. C. A. 518, and 80 Fed. 417, as well as on the authority of U. S. v. Dalles Military Road Co., 140 U. S. 599, 616, 11 Sup. Ct. 988.

The point is further made by the appellant (hat the circuit court erred in adjudging the plea sufficient, the contention on the part of the appellant being that the plea was bad for duplicity.

Touching this latter contention, it is only necessary to say that, as we construe the plea, it only interposed a single defense to the bill, namely, that the complainant could not maintain the suit, for the reason that certain stock which he claimed to own, and on account of which he sued, did not in fact belong to him, but liad been issued in his name merely for the purpose of enabling him to maintain an action in the federal court, which the real owner of the stock could not maintain by virtue of his being a citizen of the state of Yew York, of which state certain necessary defendants are also citizens.

In other words, the plea, taken as a whole, shows collusion between the complainant and the veal owner of the stock, for whose benefit (he suit is brought, to confer-jurisdiction on the federal courts. The plea, therefore, was not bad for duplicity. For the reason first stated, the decree is reversed, and the case is remanded to the court below, with directions to allow the complainant to reply to the plea.