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Morris v. Gilmer, a suit in equity, in one of the chancery courts of that state, against Josiah Morris, individually, and against Josiah Morris and F M Billing as composing the firm of Josiah Morris & Co, citizens of Alabama Its object was to obtain a decree declaring that the transfer, by the plaintiff to Morris, of 60 shares of the capital stock of the Elyton Land Company, an Alabama corporation, was made in trust and as collateral security for the payment of a debt due from the plaintiff to Josiah Morris & Co; ordering an accounting in respect to the amount of that debt, the value of the stock, and the dividends thereon received by Morris; and directing him upon the payment of the debt and interest, or so much thereof as appeared to be unpaid, to transfer 60 shares of the stock to the plaintiff, and pay over any dividends received in excess of the debt due from the latter Besides putting in issue all the material averments of the bill, the answer relied upon laches and the statute of limitations in bar of the suit The cause went to a hearing, upon pleadings and proofs, and on the 29th of April, 1885, a final decree was rendered dismissing the suit; the chancery court holding that the claim was barred by the statute of limitations Upon appeal the decree was affirmed by the supreme court of Alabama on the 27th of January, 1886 That court, as appears from the opinion of its chief justice, refused to modify the decree, so as to make it a dismissal without prejudice to another suit Gilmer v Morris, 80 Ala 78 The present suit was instituted, September 20, 1886, in the circuit court of the United States by Gilmer, claiming to be a citizen of Tennessee, against Morris and Billing It relates to the same shares of stock, and the relief asked is that Morris be decreed to account for and pay over to the plaintiff all dividends paid after it came to the defendant's hands, (after deducting Gilmer's indebtedness to Morris or to Morris & Co,) and to transfer the 60 shares of stock to the plaintiff The defendants filed a plea setting up the final decree in the state court in bar of the present suit That plea having been overruled, (30 Fed Rep 476,) they separately answered; Billing disclaiming any interest in the stock, or in the dividends thereon The plaintiff filed a replication Subsequently, December 16, 1887, the defendant Morris filed in the cause the affidavit of A S Gerald to the effect that, in a conversation held by him with the plaintiff on or about November 14, 1887, the latter informed him 'that he had returned to the city of Montgomery to reside permanently, and had been living here with that intent some time previous to said conversation;' and also his own affidavit to the effect that he had been informed and believed that the plaintiff returned to the city of Montgomery 'some time in the latter part of May or early part June, 1887, with the purpose and intent of permanently residing in the state of Alabama, and has continuously resided in said state of Alabama ever since said time' On the 17th of November, 1887, before the final hearing of the cause, the defendants, with leave of court, filed a written motion for the dismissal of the suit, upon the ground that it did not really and substantially involve a controversy within the jurisdiction of the circuit court; basing his motion upon the above affidavits of Gerald and Morris, and upon the depositions of the plaintiff, and of his father, F M Gilmer, taken in this cause in behalf of the plaintiff .
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