Carey v. Roosevelt

83 F. 242, 1897 U.S. App. LEXIS 2843

Opinion

OOXE, District Judge.

The demurrer to the original hill was sus mined principally upon the theory that the defendants had no opportunity to contest the claim against the testator which was revived against his administrators. As the allegations then stood the administrators had no interest in defending the revived suit, and, for aught that appeared, an unfounded claim might have been established to which a perfect defense could have been interposed had the defendants been informed of the pendency of the action and besen given an opportunity to defend it. The amendments change all this. It now appears that the defendants had the same opportunities to defend as though actually parties to the record. The suit was defended wi th the utmost vigor, aud judgment was obtained only after two trials had been had. The defendants were informed of every important step in "the litigation and the suit was defended at their instance aud request, they paving the expenses thereof. In short, they voluntarily made themselves privies to that action and had precisely the same benefits therefrom as if they were named as defendants. Had they been so named they could have done nothing more. They have had their day in court, and should not now be heard to dispute a claim which they have already disputed without success. The doctrine that a party directly interested in the result of an action, who assumes and pays for its defense, is not permitted thereafter to dispute the judgment there rendered, has been frequently recognized and enforced in the federal courts.

As pointed out in ¡bo former opinion this action is based solely upon ike judgment which was recovered in 1895, less than two years before the original bill was filed. This action, then, is not: barred by the statute of limitations, and the question whether the claim in the suit against dotting was so barred is, upon the theory of the hill, wholly immaterial.

Assuming that laches in the prosecution of the suit; against (lotting and Ms representatives is avaifable here, it certainly cannot be considered on demurrer for ¡he reason, inter alia, that the amended bill excuses the delay and imputes it to those who were defending that action.

The bill may he maintained in this court for the reason that the parties are citizens of different states. The demurrer is overruled; the defendants may answer in 20 days.