ticipated in the defense.11 It was further held that creditors who had not accepted the trust deed had no standing to attack the decree.12 Creditors who had accepted the deed were bound by the adjudication against the trustee.13

§ 186k. Res adjudicata by order in special proceeding. The effect of a final order in a special proceeding is governed by the same rules that apply to a final judgment.1 Thus an order granting a writ of mandamus or prohibition against a public officer binds his successor in office. Questions decided upon the issue of a mandamus to compel the payment of judgments were held to be res adjudicatae upon an application to enforce a later judgment, so far as concerned the balances of the former judgments therein included, but not as to the other claims. It was held that, upon an application for a mandamus to compel the levy of funds to pay a judgment, a statute of limitations which had not been pleaded in the action resulting in 'the judgment, could not be set up as a defense.*

An order denying an application for an intervention is no bar to an original bill filed by the petitioners, but it has been said that it is res adjudicata against a bill in equity to enjoin the proceedings and to permit the intervention."

A decree of deportation, rendered by a United States Commissioner, was held to be an adjudication in rem, binding in a criminal prosecution against a stranger to the proceeding."

An order denying an application for naturalization is an adjudication that the defendant is not qualified for citizenship which bars a second application until he can prove that since the

8

decision he has been qualified for at least five years. A decision by a State court upon such an application which overruled an objection made on behalf of the government was held not to be an "illegality" for which it might be annulled.

9

A decision by the Supreme Court of Michigan upon the review of an order of the State Railroad Commission fixing rates is judicial and not legislative or executive in its nature and is res adjudicata in another suit.10

Where landowners had been unsuccessful in proceedings in the State courts to prevent the forfeiture of their land for unpaid taxes, these judgments against them were res adjudicatae against a bill in the Federal court to set aside the tax sales and proceedings as a cloud upon their title.11

A final order in a proceeding administrative and not judicial in its nature is not res adjudicata.12 Such are the decisions of the New Jersey State Boards of Taxation and of Equalization of taxes 13 and a final order in a summary proceeding under the Act of June 22, 1874 14 for relief against the forfeiture of a boat or merchandise which has been seized.15 So orders quashing a writ or denying an application addressed to the discretion of a court is usually not res adjudicata.16

The quashing of a writ of certiorari to review an order is not res adjudicata in a suit for relief against the order as illegal.17 The denial of a writ of prohibition is not an adjudication that the court sought to be prohibited has jurisdiction of the proceeding which it was sought to stop.18

§ 1861. Effect as res adjudicata by interlocutory decrees and orders. In general a decree or order which is interlocutory

such as a decree for an injunction,1 or a decree for an injunction and an accounting because of the infringement of a patent," is not a bar, for, until the final decree in the cause, it is subject to revision by the court which entered it. When no formal judgment has been entered upon a verdict of findings, there is no adjudication.4

In certain cases orders which finally determine the rights of parties, such as an order of interpleader, are conclusive in subsequent litigation. It has been held: that a judgment appointing a receiver, with power to sue in any court of any State or of the United States, estops a party duly served with process therein from subsequently disputing the right of such receiver to sue in any of such other courts. That a motion in a State court to set aside a foreclosure sale, although a question under the Federal Constitution was raised, cannot be reviewed

2 Australian Knitting Co. V. Gormly, 138 Fed. 92; Whittemore Bros. & Co. v. World Polish Mfg. Co., 159 Fed. 480.

3 David Bradley Mfg. Co. v. Eagle Mfg. Co., 58 Fed. 721; Reinecke Coal Min. Co. v. Wood, 112 Fed. 477; Dady v. Georgia & A. Ry., 112 Fed. 838; infra, § 443.

4 Oklahoma City v. McMaster, 196 U. S. 529, 49 L. ed. 587. It has been held: that the following entries in the docket, although indefinite, sufficiently indicated that the action proceeded to final judgment: After the title of the case and notations of adjournments: "Trial commenced January 18, 1887, and concluded January 27, 1887, and decided in favor of the defendant. Costs assessed against plaintiff, $1,389.15. Rents and money, $1,340. Total amount, $2,729.15. Appeal to the Supreme Court granted." In the Supreme Court: Court met pursuant to adjournment. The bench all present.

The evidence in the case was then concluded, and, after some argu. ments by counsel on both sides, the case was submitted to the court for their decision. The court, after some deliberation, decided that the will is good, and hereby confirms the decision of the lower court." Holford v. James, 136 Fed. 533. An entry in the reeord of an Ohio Court: stating findings, adjudging that the marriage contract theretofore existing between the parties be dissolved and both parties released from its obligations; and that the plaintiff is entitled to alimony and that he be ordered to pay, specifying the amount and the costs of this proceeding taxed at $,” was held to be a final judgment. Smith v. Smith, C. C. A., 247 Fed. 461.

*

5 Insurance Co. v. Harris, 97 U. S. 331, 24 L. ed. 959; supra, § 157. But see N. Y. Life Ins. Co. v. Dunlevy, 241 U. S. 518, § 158.

6 Burr v. Smith, 113 Fed. 858; supra, §§ 35-37, 93.

by a District Court of the United States. That an order fixing an attorney's fees, upon a motion for his substitution, is not an adjudication which will support an action at law, brought in another Federal district; that a decree for alimony and costs will not support an action in another State in respect to future payments for which it provides, but as to which it remains subject to modification at any time, in the discretion of the court that rendered it; that a decree was not final, which confirmed and adopted a commissioners' report in partition, recommending a conveyance of part of the land, a sale of the rest, and a distribution of the proceeds, as thereafter ordered upon the confirmation of the sale.10 Where several suits ancillary to each other were brought in different districts, it was said that the validity of a decree in one district could not be questioned by the same parties in the ancillary suit in another district.11

Some authorities hold that pending an appeal, the judgment is not final nor conclusive; 12 but the rule does not apply to an application to the Supreme Court for certiorari,13 nor probably to a writ of error which is not a continuation of the original proceeding.14 In determining the effect of an appeal from the judgment of a State court, the State practice will be examined.15

§ 186m. Res adjudicata by dismissals and non-suits. A discontinuance, a non-suit,2 or dismissal for want of jurisdic

7 Queens Land & Title Co. V. King's County Trust Co., 255 Fed.

222.

8 Du Bois v. Seymour, C. C. A., 152 Fed. 600; reversing 145 Fed. 1003.

9 Israel v. Israel, C. C. A., L.R.A. (N.S.) 1168, 8 Ann. Cas. 697, 148 Fed. 576; Valiquet v. Valiquet, 177 Fed. 994. See Cotter v. Cotter, C. C. A., 225 Fed. 471.

10 Clark v. Roller, 199 U. S. 541, 50 L. ed. 300.

11 Compton v. Jesup, 68 Fed. 263, 282, per Taft, J. But see s. c., 167 U. S. 1, 42 L. ed. 55.

12 Blue Goose Mining Co. v. Northern Light Mining Co., C. C. A., 245 Fed. 727.

13 Keown v. Keown, 257 Fed. 851. See Minerals Separation v. Butte & Superior Copper Co., 227 Fed. 401; Finley v. Halliburton, C. C. A., 251 Fed. 860.

14 General Electric Co. v. American Brass & Copper Co., 208 Fed. 24; see infra, § 687.

15 Calaf Y Fugurul v. Calaf Y Rivera, 232 U. S. 371; Blue Goose Min. Co. v. Northern Light Co., C. C. A., 245 Fed. 727.

§ 186m. 1 Carlisle v. Smith, 224 Fed. 231; Hanson v. Hanson, C. C. A., 234 Fed. 853.

2 Homer v. Brown, 16 How. 354, 14 L. ed. 970; Woodward v. Davidson, 150 Fed. 840; Muir v. Morris, 257 Fed. 150; Bixler v. Pennsyl

tion, or for want of proof, or otherwise, if not upon the merits, is not conclusive in a subsequent action upon the same facts, and the rulings in such a case, even if made by the appellate tribunal are not binding in a second suit, brought in another jurisdiction." A direction of a verdict is a conclusive adjudication upon the issues between the parties." The decision of a State court as to the effect of a judgment of a certain character in its courts should, unless a contract is involved, be followed by the courts of other jurisdictions.

8

A decree of a court of equity will not be a bar if it resulted in the dismissal of a bill without prejudice; or for want of prosecution,10 or for multifariousness,11 or for a slip in practice, 12 such as a dismissal upon a verified answer when an oath

vania R. Co., 201 Fed. 553; Que. reau v. Lehigh Valley R. Co., 251 Fed. 986.

3 Wayne County Securities Co. v. Hughitt, 228 Fed. 816; Bistline v. United States, C. C. A., 229 Fed. 546. For an admiralty case, see the Wilhelmina, C. C. A., 232 Fed. 430. 4 Bingham v. Wilkins, Fed. Cas. 1416; Ploxin v. Brooklyn Heights R. R. Co., C. C. A., 2d Ct., N. Y. L. J., Jan'y 29, 1920, Fed. -; Homer v. Brown, 16 How. 354, 14 L. ed. 970; Woodward v. Davidson, 150 Fed. 840; Muir v. Morris, 257 Fed. 150; Bixler v. Pennsylvania R. Co., 201 Fed. 553; Quereau v. Lehigh Valley R. Co., 251 Fed. 986.

5 Gardner v. Mich. Cent. R. Co., 150 U. S. 349, 37 L. ed. 1107. But see Williford v. Kansas City, M. & B. R. Co., 154 Fed. 514.

6 Gardner v. Mich. Cent. R. Co., 150 U. S. 349, 37 L. ed. 1107; Gilbert v. Am. Surety Co., C. C. A., 122 Fed. 499; Harrison v. Remington Paper Co., C. C. A., L.R.A. (N.S.) 954, 140 Fed. 385, 5 Ann. Cas. 314; Illinois Cent. R. R. Co. v. Benz, 108 Tenn., 670, 58 L.R.A. 690, 91 Am. St. Rep. 763.

7 U. S. Farm Land Co. v. Jameson, C. C. A., 246 Fed. 592.

Cline v. Southern Ry Co., 231 Fed. 238; Muir v. Morris, 257 Fed. 150.

9 Durant v. Essex Co., 7 Wall. 107, 19 L. ed. 154; House v. Mullen, 22 Wall. 42, 46, 22 L. ed. 838, 839; Northern Pac. Ry. Co. v. St. Paul, M. & M. Ry. Co., 47 Fed. 536; infra, § 377.

10 American D. R. B. Co. v. Sheldon, 17 Blatchf. 208; s. c., 4 Bann. & A. 551; Keller v. Stolzenbach, 20 Fed. 47; Conn v. Penn, 5 Wheat. 424, 427, 5 L. ed. 125; Badger v. Badger, 1 Cliff. 241; Welsbach Light Co. v. Cohn, 181 Fed. 122.

11 Young v. U. S., 176 Fed. 612.

12 Durant v. Essex Co., 7 Wall. 107, 109, 19 L. ed. 154, 156; House v. Mullen, 22 Wall. 42, 46, 22 L. ed. 838, 839; Walden v. Bodley, 14 Pet. 158, 10 L. ed. 399; Gist v. Davis, 2 Hill. Ch. (S. C.) 335; Grubb v. Clayton, 2 Hayw. (N. C.) 378; Hughes v. U. S., 4 Wall. 232, 18 L. ed. 303. See, however, Starr v. Stark, 1 Saw. 270; Anon., 3 Atk. 809; Story's Eq. Pl., § 790.