Waite v. Triblecock

28 F. Cas. 1342, 5 Dill. 547

Opinion

DILLON, Circuit Judge,

in disposing of this question, said, in substance:

The special defence, that the plaintiff is concluded by the judgment in replevin in the state court, is not well founded in law. The pleadings in that case go upon the idea that the Great Western Insurance Company was the owner of the notes, and that the defendant therein, Ellis, was the agent of the company. The findings in the judgment of the state court as to Waite, the present complainant, are outside of the issues and void. Waite was the owner of the note, and the indorsement on the note so disclosed, and, if he was to be bound, should have been made a party to the replevin action. Besides, his claim of ownership to the notes was known to the plaintiff in replevin long before the cause was tried, and he refused to make Waite a party.

Ellis was in the interest of the plaintiff in that suit, and no defence in fact was made, and there was no trial on the merits as respects Waite, the real owner. Jones was employed as an attorney in the replevin suit by the insurance company, and not by Waite.

Whether the validity the note could have been tried in an action >f replevin in the manner sought, had the real owner been a party, need not be decided. The action of replevin is not one in rem, and to give-jurisdiction over the person he must be a party. Ellis sustained no such relatiomdo the note or to Waite as to make the judgment against him, which ho did not defend for Waite, conclusive on him. It is res inter alios acta as to Waite.

Decree for plaintiff.

An appeal was prayed and allowed, and after-wards the decree was affirmed [unreported].