Opinion of the Court.

declared on. The court declined to so rule, and being of the opinion that he was entitled to so recover, except for the said adjudication in the state court, he held that said adjudication was of itself conclusive as a bar to the recovery, so far as the forty shares of new stock in question were concerned, notwithstanding the issuing and pendency of a writ of error, and ordered judgment for the amount only of the assessment upon the forty shares of old stock not in dispute; that is to say, in the sum of $5172. The plaintiff excepted to the ruling in so far as it precluded him from recovering a like sum in addition on account of the other forty shares."

As the sole ground and reason for giving judgment against the receiver, in regard to the amount of the new shares of stock, was the judgment of the Supreme Judicial Court of Massachusetts, which (as stated) we have just reversed, the inquiry arises what disposition may be made of the judgment in this case, supposing that the evidence of the Massachusetts judgment was properly admitted and allowed by the Circuit Court on the trial of the cause. At that time this judgment was valid and subsisting. It was not nominally between the same parties, it is true. It was a judgment recovered by Mary J. Eaton against the Pacific National Bank; whereas the present action is an action between Butler, the receiver of the said bank, and the said Mary J. Eaton. We are inclined to think, however, that the court below was right in determining that the two actions were substantially between the same parties, inasmuch as a receiver of a national bank, in all actions and suits growing out of the transactions of the bank, represents it as fully as an executor represents his testator. We think, therefore, that the evidence of the judgment recovered was properly admitted as a bar to the receiver's title to recover in reference to the new stock. And it cannot be said, therefore, looking to the record in this case alone, that there is error in the judgment now before us. But by our own judgment just rendered in the other case, the whole basis and foundation of the defence in the present case, namely, the judgment of the Supreme Judicial Court of Massachusetts, is subverted and rendered null and void for the purpose of any

Opinion of the Court.

such defence. Whilst in force, an execution issued upon it, and a sale of property under such execution would have been effective. And when it was given in evidence in this case it was effective for the purpose of a defence, but its effectiveness in that regard is now entirely annulled. Are we then bound to affirm the judgment and send it back for ulterior proceedings in the court below, or may we, having the judgment before us, and under our control for affirmance, reversal or modification, and having judicial knowledge of the total present insufficiency of the ground which supports it, set it aside as devoid of any legal basis, and give such judgment in the case as would and ought to be rendered upon a writ of error coram vobis, audita querela, or other proper proceedings for revoking a judgment which has become invalid from some

extraneous matter?

In the case of Ballard v. Searls, 130 U. S. 50, which was an appeal in equity in which a somewhat similar exigency. existed, we remanded the cause to the Circuit Court with instructions to allow the appellant to file such supplemental bill as he might be advised, in the nature of a bill of review, or for the purpose of suspending or avoiding the decree upon the new matter arising from the reversal of the decree on which it was based. There were complications in that case which rendered such a course advisable. A sale had been -made under execution, and the purchasers might have acquired rights which a simple reversal of the decree would have embarrassed; and the decree itself was not founded directly upon the other decree which had been reversed, but was rendered on a bill filed to set aside alleged fraudulent conveyances of land which obstructed the execution of that decree. It seemed to us that the necessary investigation to be made would involve the exercise of original jurisdiction by this court, to which it is not competent. Hence we took the course mentioned, by remanding the cause to the Circuit Court in order that the requisite ulterior proceedings might be taken there.

The present case is a more simple one. The judgment complained of is based directly upon the judgment of the Supreme

Statement of the Case.

Judicial Court of Massachusetts, which we have just reversed. It is apparent from an inspection of the record that the whole foundation of that part of the judgment which is in favor of the defendant is, to our judicial knowledge, without any validity, force or effect, and ought never to have existed. Why, then, should not we reverse the judgment which we know of record has become erroneous, and save the parties the delay and expense of taking ulterior proceedings in the court below to effect the same object?

Upon full consideration of the matter we have come to the conclusion that we may dispose of the case here.

We, therefore, reverse the judgment of the Circuit Court, and order that the cause be remanded with directions to enter judgment for the plaintiff in error against the defendant in error for the whole amount sued for in the action, namely, eight thousand dollars, with interest and costs, and take such further proceedings as may be proper in conformity with this opinion.

TUSKALOOSA NORTHERN RAILWAY COMPANY v.

GUDE.

FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DIVISION OF THE NORTHERN DISTRICT OF ALABAMA.

No. 1606. Submitted January 15, 1891.- Decided February 2, 1891.

In an action at law in a Circuit Court, judgment being rendered for the plaintiff, there was no bill of exception, no writ of error nor an allowance of appeal, but the defendant filed a supersedeas bond in which it was alleged that the defendant had "prosecuted an appeal or writ of error to the Supreme Court of the United States, to reverse the judgment." The plaintiff moved for the revocation of the supersedeas created by the bond, which motion was denied. The motion in this court for leave to docket and dismiss the case was granted.

THIS was a motion for leave to docket and dismiss a cause. The motion was as follows:

Statement of the Case.

"Motion is made in this cause, upon the record of the proceedings of the Circuit Court of the United States for the Southern Division of the Northern District of Alabama, a duly certified transcript whereof is now submitted to this Honorable Court, on the following prayers for relief in behalf of the plaintiff in said cause.

"First. That the plaintiff in said cause, as the defendant in error in this court, have leave to docket said cause and dismiss the same, under section 1 of Rule 9, of the Rules of practice in the Supreme Court, or:

"Second. That the plaintiff in said cause have leave to docket the same and file a copy of the record in said case with the Clerk of the Supreme Court and that his counsel have leave to enter his appearance therein, and that the cause shall stand for argument at the present term of the court, under sections 2 and 3 of said Rules of practice: or for motion to dismiss the same under Rule 6: and

"Third. That the court will, if said cause is dismissed under Rule 9, or under any other Rule, adjudge damages to the said Albert V. Gude the plaintiff in said judgment, for delay under section 2 of Rule 23, and also a mandate, or other process in the nature of a procedendo, to the court below, under Rule 24.

"Fourth. That the court will grant to the plaintiff in said judgment any other relief in the premises to secure justice to him, that may be consistent with the law and the practice in the Honorable Court.

"JOHN T. MORGAN,

"Attorney for Albert V. Gude.

"STATEMENT OF FACTS SHOWN BY THE DULY CERTIFIED RECORD

HEREWITH SUBMITTED.

"On the 24th March, 1890, judgment was rendered on the verdict of a jury, in the said Circuit Court of the United States, in favor of Albert V. Gude, against the Tuskaloosa Northern Railway Company, for the sum of ten thousand doli and costs, for which execution was ordered to issue.

"On the 25th March, 1890, the attorneys of the parties

Statement of the Case.

entered into the following stipulation: In the above cause it is hereby agreed that the time for signing the bill of exceptions in this cause and taking appeal or prosecuting writ of error therein be and the same is hereby extended until the 1st day of June, 1890, and that the said bill of exceptions shall be considered as if filed on the last day of the term of said court now pending.'

"On the filing of this agreement the court ordered that no execution issue in this cause until said 1st day of June, 1890, and then that the same should not issue if the defendants have taken said appeal, or prosecuted their writ of error, upon supersedeas bond; and that the said bill of exceptions be,. when signed, considered as if filed on the last day of the present term of the court.'

"The certificate of the Clerk of the court shows the transcript now submitted to the court to be a true, perfect and complete transcript and copy of the record and proceedings heretofore had and entered of record' in said cause. No bill of exceptions is in the record and none has been signed or filed.

"On the 31st of May, 1890, a bond was filed in the clerk's office, which had been taken and approved this 24th day of May, 1890,' by 'John Bruce, Judge of the U. S. Court, Southern Division Northern District of Alabama.""

The following is a copy of that bond, as the same is set out and certified in the transcript of the record now, here, submitted to the court.

"The Tuskaloosa Northern Railway Company, a body Corporate under the laws of Alabama.

v.

Circuit Court of the United States of Am

J. C. Reiley and A. V. Gude, constituting the firm of Reiley & Gude.

Appellees."

For the Southern Division of the Northern District of Alabama.

"Know all men by these presents that we The Tuskaloosa