HUNT, Circuit Judge
(after stating the facts as above). [1] We believe that under the circumstances set forth in the above statement the bill is without equity, in that it shows that there was a plain, speedy, and adequate remedy at law in the courts of the state in which the judgment entered July 11, 1914, was rendered. If we assume for the present purposes of the case that the judgment in ejectment entered against Krueger was obtained by the fraud of plaintiff’s guardian ad litem and the adverse party, it still appears that the plaintiff herein had ample remedy; availed of by motion to set aside the judgment in the court where it was given. Section 473 of the Code of Civil Procedure of California provides that the court, upon such terms as may be just, may relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, provided application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding has been taken. It is plain from the record that this plaintiff knew of the judgment in favor of Sophie Suter against himself individually less than four weeks after rendition of tire judgment, and inasmuch as he fails to show satisfactory reason for not availing himself of an appeal under the procedure of the state codes, his case is fairly within the rule established by the Supreme Court of the state of California in the case of Eldred v. White, 102 Cal. 600, 36 Pac. 944, and Heller v. Dyerville Mfg. Co., 116 Cal. 127, 47 Pac. 1016_
_ In Eldred v. White, supra, the action was to set aside a judgment on the ground of fraud, but it was not instituted until 13 months after the date of the judgment in the foreclosure suit, and no reason was shown why it was not commenced sooner. The court held that no sufficient facts were stated to constitute a cause of action. In Heller v. Dyer-ville Mfg. Co., supra, the question arose upon a prayer to modify a judgment on the ground of fraud. The Supreme Court of the state -held that there was no occasion to resort to equity, because the party seeking the modification was sufficiently advised of the proceedings within the six months from the entry of the decree, within which time, under section 473 of the Code of Civil Procedure' of California, he could have moved for modification.
In Nougué v. Clapp, 101 U. S. 551, 25 L. Ed. 1026, application was made to set aside a decree of a state court and a sale on the ground that the decree was obtained arid the sale conducted pursuant to a conspiracy to which the person obtaining the decree and who became the purchaser at the sale was a party; but the Supreme Court held that, inasmuch as the law of the state of Louisiana allowed a motion and procedure in its courts to set aside the decree, there being no showing in the bill that the plaintiff had pursued such remedy, the federal court [857]*857would not interfere. Justice Miller stated that, if the lower court of the state refused remedy, there was an appeal to the Supreme Court, and, moreover, that under the laws of Eoúisiana a remedy by a special proceeding was available, and that it was not for the federal courts to reverse a decree, and set aside an order of sale made by a state court, in a case where jurisdiction of the state court was undoubted. “It would,” he continued, “be an invasion of the powers belonging to that court, and such a doctrine would, upon the simple allegation of fraud practiced in the court, enable a party to retry in a federal court any case decided against him in a state court.”
In Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870, which was a bill to set aside a judgment as fraudulent, plaintiff alleged that he did not know of the fraudulent judgment until it was too late to make motions necessary to obtain relief under the state practice. The Supreme Court distinguished the case from Nongué v. Clapp, supra, and held that the facts took it out of the rule that relief will not be granted in equity, even where the party has an equitable defense if he could, by the exercise of diligence, have availed himself of that defense in the action at law to which he was a party.
In Bower v. Stein, 177 Fed. 673, 101 C. C. A. 299, suit was brought to set aside a judgment in foreclosure rendered in the state court where summons had been published; the claim being that the judgment was obtained by fraud. Judge Gilbert, speaking for this court, said:
“Another ground on which it should be held that there Is no equity in the bill is the appellant tailed to avail herself of the remedy afforded her by the statute of Oregon, which provides that the defendant against whom a judgment is taken on service by publication may upon good cause shown, and upon such terms as may be proper, be allowed to defend within one year after judgment. Under that statute, it has been held that an allegation that the plaintiff in the action did not try to find the defendant’s address may be considered upon a motion to open the decree. Smith v. Smith, 3 Or. 363. According to the allegations of the bill, the appellant had notice of the foreclosure suit in ample time to have availed herself of the remedy so afforded by the state statute. A party who thus neglects to avail himself of the remedies afforded in the state court is precluded from resorting to a federal court to obtain relief against the decree. Nougué v. Clapp, 101 U. S. 551. 25 L. Ed. 1026; Graham v. Boston, H. & E. R. Co. (C. C.) 14 Fed. 753, affirmed in 118 U. S. 162, 6 Sup. Ct. 1009, 30 L. Ed. 196.”
The doctrine of this last-cited case is pertinent, because in California, under section 473 of the Code of Civil Procedure, motion to set aside a judgment rendered on service by publication is put upon the same footing as a motion to set aside a judgment for fraud or inadvertence under the California Code. The general rule was announced also in Strand et al. v. Griffith, 144 Fed. 828, 75 C. C. A. 558.
In the more recent case of Simon v. Southern Railway, 236 U. S. 115, 35 Sup. Ct. 255, 59 L. Ed. 492, the Supreme Court, while holding that a plaintiff with a valid state judgment can he enjoined by the United States court from its inequitable use and that the federal court may enjoin a party from using that which purports to be a judgment, but which is in fact an absolute nullity, nevertheless recognized the rule that where a state court ha.d jurisdiction of the person and subject-matter, the judgment rendered in the suit would be binding on the par[858]*858ties until reversed, and there would, therefore, usually be no equity in a bill in the federal- court seeking injunction against the enforcement of the judgment in the state court thus binding between the parties.
[2] If, however, we look into the substance of the case, and test the bill by its averments of fraud, our conclusion would still have to be against this appellee. Stripped of immaterial matters, it appears that on August 5, 1913, Sophie Suter, as executrix, sued the appel-lee in the superior court of the state of California. A guardian ad litem was appointed by the court to act for the appellee Krueger, and Krueger also appeared in person. After trial the court gave judgment for Krueger.
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HUNT, Circuit Judge
(after stating the facts as above). [1] We believe that under the circumstances set forth in the above statement the bill is without equity, in that it shows that there was a plain, speedy, and adequate remedy at law in the courts of the state in which the judgment entered July 11, 1914, was rendered. If we assume for the present purposes of the case that the judgment in ejectment entered against Krueger was obtained by the fraud of plaintiff’s guardian ad litem and the adverse party, it still appears that the plaintiff herein had ample remedy; availed of by motion to set aside the judgment in the court where it was given. Section 473 of the Code of Civil Procedure of California provides that the court, upon such terms as may be just, may relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, provided application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding has been taken. It is plain from the record that this plaintiff knew of the judgment in favor of Sophie Suter against himself individually less than four weeks after rendition of tire judgment, and inasmuch as he fails to show satisfactory reason for not availing himself of an appeal under the procedure of the state codes, his case is fairly within the rule established by the Supreme Court of the state of California in the case of Eldred v. White, 102 Cal. 600, 36 Pac. 944, and Heller v. Dyerville Mfg. Co., 116 Cal. 127, 47 Pac. 1016_
_ In Eldred v. White, supra, the action was to set aside a judgment on the ground of fraud, but it was not instituted until 13 months after the date of the judgment in the foreclosure suit, and no reason was shown why it was not commenced sooner. The court held that no sufficient facts were stated to constitute a cause of action. In Heller v. Dyer-ville Mfg. Co., supra, the question arose upon a prayer to modify a judgment on the ground of fraud. The Supreme Court of the state -held that there was no occasion to resort to equity, because the party seeking the modification was sufficiently advised of the proceedings within the six months from the entry of the decree, within which time, under section 473 of the Code of Civil Procedure' of California, he could have moved for modification.
In Nougué v. Clapp, 101 U. S. 551, 25 L. Ed. 1026, application was made to set aside a decree of a state court and a sale on the ground that the decree was obtained arid the sale conducted pursuant to a conspiracy to which the person obtaining the decree and who became the purchaser at the sale was a party; but the Supreme Court held that, inasmuch as the law of the state of Louisiana allowed a motion and procedure in its courts to set aside the decree, there being no showing in the bill that the plaintiff had pursued such remedy, the federal court [857]*857would not interfere. Justice Miller stated that, if the lower court of the state refused remedy, there was an appeal to the Supreme Court, and, moreover, that under the laws of Eoúisiana a remedy by a special proceeding was available, and that it was not for the federal courts to reverse a decree, and set aside an order of sale made by a state court, in a case where jurisdiction of the state court was undoubted. “It would,” he continued, “be an invasion of the powers belonging to that court, and such a doctrine would, upon the simple allegation of fraud practiced in the court, enable a party to retry in a federal court any case decided against him in a state court.”
In Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870, which was a bill to set aside a judgment as fraudulent, plaintiff alleged that he did not know of the fraudulent judgment until it was too late to make motions necessary to obtain relief under the state practice. The Supreme Court distinguished the case from Nongué v. Clapp, supra, and held that the facts took it out of the rule that relief will not be granted in equity, even where the party has an equitable defense if he could, by the exercise of diligence, have availed himself of that defense in the action at law to which he was a party.
In Bower v. Stein, 177 Fed. 673, 101 C. C. A. 299, suit was brought to set aside a judgment in foreclosure rendered in the state court where summons had been published; the claim being that the judgment was obtained by fraud. Judge Gilbert, speaking for this court, said:
“Another ground on which it should be held that there Is no equity in the bill is the appellant tailed to avail herself of the remedy afforded her by the statute of Oregon, which provides that the defendant against whom a judgment is taken on service by publication may upon good cause shown, and upon such terms as may be proper, be allowed to defend within one year after judgment. Under that statute, it has been held that an allegation that the plaintiff in the action did not try to find the defendant’s address may be considered upon a motion to open the decree. Smith v. Smith, 3 Or. 363. According to the allegations of the bill, the appellant had notice of the foreclosure suit in ample time to have availed herself of the remedy so afforded by the state statute. A party who thus neglects to avail himself of the remedies afforded in the state court is precluded from resorting to a federal court to obtain relief against the decree. Nougué v. Clapp, 101 U. S. 551. 25 L. Ed. 1026; Graham v. Boston, H. & E. R. Co. (C. C.) 14 Fed. 753, affirmed in 118 U. S. 162, 6 Sup. Ct. 1009, 30 L. Ed. 196.”
The doctrine of this last-cited case is pertinent, because in California, under section 473 of the Code of Civil Procedure, motion to set aside a judgment rendered on service by publication is put upon the same footing as a motion to set aside a judgment for fraud or inadvertence under the California Code. The general rule was announced also in Strand et al. v. Griffith, 144 Fed. 828, 75 C. C. A. 558.
In the more recent case of Simon v. Southern Railway, 236 U. S. 115, 35 Sup. Ct. 255, 59 L. Ed. 492, the Supreme Court, while holding that a plaintiff with a valid state judgment can he enjoined by the United States court from its inequitable use and that the federal court may enjoin a party from using that which purports to be a judgment, but which is in fact an absolute nullity, nevertheless recognized the rule that where a state court ha.d jurisdiction of the person and subject-matter, the judgment rendered in the suit would be binding on the par[858]*858ties until reversed, and there would, therefore, usually be no equity in a bill in the federal- court seeking injunction against the enforcement of the judgment in the state court thus binding between the parties.
[2] If, however, we look into the substance of the case, and test the bill by its averments of fraud, our conclusion would still have to be against this appellee. Stripped of immaterial matters, it appears that on August 5, 1913, Sophie Suter, as executrix, sued the appel-lee in the superior court of the state of California. A guardian ad litem was appointed by the court to act for the appellee Krueger, and Krueger also appeared in person. After trial the court gave judgment for Krueger. The guardian ad litem was appointed upon a petition duly made in September, 1913, and after order to show cause had been served upon Krueger, and after hearing by the superior court, and after an adjudication that he was an incompetent person, and that it was necessary that a guardian ad litem should be appointed to represent him in the action then pending against him. Thereafter, upon representation to the court, order of compromise was made by the court, and the guardian ad litem under due authority agreed with the appellant Suter, plaintiff in the action pending in the state court, that the judgment might be set aside, and accordingly judgment was set aside and a new trial was thereafter had before Judge Sturtevant, who had presided at the previous trial. On this second trial the court had before it all" the evidence adduced on the first trial, and pursuant to an agreement between the guardian ad litem and this appellant Suter respecting a proposition of payment to Krueger in settlement, judgment was on July 11, 1914, given in her favor against Krueger. Thereafter, on July 11, 1914, the guardian ad litem told Krueger of the compromise and of moneys due to appellee under the compromise.
It is apparent that the guardian ad litem was appointed by order of the court in which the action was pending, and there is no real showing that the order of such appointment was brought about by any misrepresentation or fraud. It must therefore be regarded as binding. It also appears that endeavor was made to settle the controversy between the parties, turn Suden acting as guardian ad litem, and the adverse party, Mrs. Suter. No facts showing misrepresentation or deceit or fraud in this attempted compromise are pleaded; nor is there any showing that the court was not fully advised by the guardian ad litem of all the facts in the possession of the guardian ad litem and of the appellant Mrs. Suter, or that the court was deceived or misled. The court of the state certainly had the right to appoint a guardian ad litem after notice to Krueger, and after he had an opportunity to be heard upon the question of his competency.
As to the jurisdiction in the superior court of the state to approve a compromise between the guardian ad litem and Mrs. Suter without consulting Krueger, held to be incompetent, we can have no doubt when we examine section 372 of the Code of Civil Procedure of California. That section provides that when an incompetent person is a party—
“tie must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending, in each case.”
[859]*859The statute continues:
“A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the infant, insane, or incompetent person in the action or proceeding. * * * The general guardian or guardian ad litem so appearing for any infant, or insane or incompetent person in any suit shall have power to compromise the same and to agree to the judgment to bo entered therein for or against his ward, subject to the approval of the court in which such suit is pending.”
The guardian regularly appointed, being vested with the power to compromise and agree to the judgment to be entered in the suit pending for or against his ward, subject to the approval of the court, was authorized to take the course that he did. Krueger having been found and adjudged to be incompetent, notification to him personally of the proposed compromise was not legally necessary, provided always the court should deem the compromise to be fair to the incompetent. Procedure according to the terms of the statute was therefore had, and the federal court will not now entertain a bill which necessarily involves an inquiry whether or not Krueger was in fact competent, notwithstanding the decision of the state court, when the guardian ad litem acted in his behalf and with the approval of the court. We have considered the fact that a judgment had been rendered in favor of Krueger after the first trial, but we do not think that affects the question. The action was still pending (section 1049, Code of Civil Procedure of California), and the superior court of the state was authorized to grant a new trial and vacate the judgment, and, no facts showing fraud being alleged, to entertain the suggestion of a compromise and to approve of the same. Heller v. Dyerville Mfg. Co., 116 Cal. 127, 47 Pac. 1016.
In Harbison v. Harbison et al. (Tex. Civ. App.) 56 S. W. 1006, a minor brought suit to set aside a waiver and abandonment of appeal made by his next friend upon the ground that, while the court approved the same, the decree was the result of fraud and mistake. The Court of Appeals of Texas cited the statute of Texas, which, much like section 372 of the Code of Civil Procedure of California, authorized a settlement by the next friend with the approval of the court, and held that, notwithstanding the fact that the bill alleged fraixd in general terms, the decree should not be set aside, because there was no showing that the court had been deceived in making the decree approving the compromise, and because it must be assumed that the facts were fully before the court when such decree was made. In that case there was also a failure to allege that any misrepresentation had been made to the guardian or next friend by the adverse party, although the complaint alleged that, because of the compromise, property of great value had been sacrificed, to the injury of the minor, and that the settlement had been made without constilting him.
[3] It is urged that relief against the judgment had against Krueger personally should he granted, because Krueger now claims as the administrator of the estate of his mother. Thus is presented the question whether the judgment against Krueger individually affects his rights as administrator. Krueger, being the heir of his deceased moth[860]*860'er, whose estate he represents as administrator, as such'heir is entitled to the possession of the property. As his possession flows from such right, as administrator he is privy to his possession as heir, and as heir may prosecute or defend the action. California Code of Civil Procedure, §§ 1452, 1453, and 1581; McFadden v. Ellmaker, 52 Cal. 348; Ryer v. Fletcher Ryer Co., 126 Cal. 482, 58 Pac. 908. Furthermore, Krueger having actually appeared and defended the action, it is not material that in making the defense he did not have himself substituted in- his official capacity as the nominal defendant. California Code of Civil Procedure, § 1908; Estate of Ricks, 160 Cal. 467, 117 Pac. 539. We believe ejectment was properly brought against Krueger, occupant of the premises, individually rather than as administrator; the rule being that no action- can be maintained against a personal representative, as such, for a tort. Luscomb v. Fintzelberg, 162 Cal. 433, 123 Pac. 247.
Careful examination of the whole record impresses us with the belief that there is no substance in the attack upon the good faith of the guardian toward his ward. Mr. turn Suden, who Was the guardian, sets forth with great detail his belief that his ward was incompetent, and that he formed such belief after observing him and conferring with him and noting his unwillingness to take care of his interests in permitting judgments to go against him. Nothing is to be taken against the guardian ad litem because he was paid $250 for his services after a compromise had been approved: tire judge found that that sum would be reasonable, and ordered it paid; and it is not enough to say that such a payment, made, as it was, under an order of the state court, is evidence of any impropriety or breach of good faith on the part of the guardian;
There is some conflict in the affidavits as to the valúe of the property. But all the facts, including statements concerning bills for taxes and other evidence relating to the market value of the property, were before the state court at the time that it passed on the'motion for a new trial, which was made after judgment had been rendered in favor of Krueger. It was the opinion of the judge of the state court that under the law the motion for a new trial was well taken, because the decree in foreclosure was valid, and the order which had set it aside was in excess of the jurisdiction of the court, because it had been made pending appeal. Presumably such was the law of tire state. Therefor the order granting a new trial was correct, and tire guardian ad litenr presumably acted in the best interests of his ward in using his best endeavors to effect a compromise whereby the ward would receive some advantage.
In conclusion, we think it appears that the appellee, having had decision ■ rendered against him by the courts of the state, which denied' his claims, fails to show any ground for maintaining this suit in the federal courts, which is based upon the same grounds as the litigation had in the courts of the state. Relief herein must therefore be denied, and the order and interlocutory decree must be reversed, and the cause remanded to the lower court, with directions to dismiss the complaint.