COOPER et al. v. NEWELL et al.

COOPER et al. v. NEWELL et al. (Circuit Court of Appeals, Fifth Circuit. May 31, 1899.) No. 511. Evidence — Record in Coddaterat, Suit. In an action in a federal court in which it was sought to collaterally impeach a prior judgment of a state court, the admission in evidence of the record of a second suit in the state court, commenced by the person against whom the former judgment was rendered, to relieve himself therefrom, for the sole purpose of showing due diligence on his part, is not reversible error. In Error to the Circuit Court of the United States for the Eastern District of Texas. F. Chas. Hume, for plaintiffs in error. Henry W. Rhodes and Thos. H. Franklin, for defendants in error. Before PARDEE and McCORMICK, Circuit Judges, and NEWMAN, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. The controlling question in this case, to wit: “Was the judgment of the district court of Brazoria county, Texas (said court being a court of general jurisdiction), in the case of Peter MeGreal v. Stuart Newell, subject to collateral attack in the United States circuit court for the Eastern district of Texas, sitting in' the same territory in which said district court sat, in this suit, between a citizen of the state of New York and a citizen of the state of Texas, by evidence aliunde the record of the state court, showing that the defendant, Stuart Newell, in said suit in said state court, was not a resident of the state of Texas at the time the suit was brought, nor a citizen of said' state, but a resident citizen of another state, and that he was not cited to appear in said suit, and that he did not have any knowledge of said suit, and that he did not in fact appear in said suit, and that he did not authorize X A. Swett, the attorney who purported to appear for him in said suit, to make any such appearance, and that the appearance by said attorney was made without his knowledge or consent?” —was certified to the supreme court, and has been answered in the affirmative. . (Opinion not yet officially .reported) 19 Sup. Ct. 506. The trial court admitted in evidence the transcript of the proceedings and judgment of the district court of Brazoria county, Tex., in the suit numbered 8,542, filed August 20, 1876, by Stuart Newell against the heirs of Peter McGreal, not as a muniment of title, but for the sole purpose of showing diligence on the part of Stuart Newell in relieving himself of the aforesaid judgment of the Brazoria court in said case No. 1,527 (Peter MeGreal v. Stuart New-ell). This was not reversible error. The other questions raised by the assignment of errors are not insisted upon, and the judgment of the circuit court is affirmed.