Page:Federal Reporter, 1st Series, Volume 8.djvu/130

116 FEDERAL REPORTER. �liusL.aud and wife one piece of real estate, the homestead of the fauii]y, which was commuaity property, and that said property waa valued at the tiine the inventory was taken in 1873 at |3,000, still i-emains intact, belonging to the heirs of Bohne, and unsold. It should also be mentioned that after the judgment was rendered in 1876, in favor of the First National Bank, effort was made on the part of the tutor to sell the above-deseribed property for the purpose of paying said judgment, or any other liabilities of the succession. After sale was made (due proceedings being taken) the probate court, for reasons given in its judgment, refused to confirm the same. �In August, 1880, complainant, to wit, First National Bank of New Orleans, brought the present suit in equity, and to these last proceedings counsel for the -heirs has opposed the objections : �(1) That the claim, so far as related to George C. Bohne, Francis T. and Bertha A. Bohne, is res arljudioata; (2) that plaintiff is nofc entitled to pro- ceed in equity, as there are plain,^ adequate, and complete remedies at lawj {3) that in no event can a judgment be rendered against the heirs of A. Bohne for any amount beyond that which came to them by inheritance. �In the first and second objections I do not see much merit. This is a suit in equity to subject certain real estate described in the bill to the payment of a judgment, and enforce contribution from heirs, with different liabilities, where the defendants to the bill, in their answer, "admit that a writ oi fieri facias cannot issue against said property on said judgment, and that it cannot be executed against ■the successions of the said A. Bohne and wife." In such a case it would be strange that an attempt to enforce the judgment by suit ■would defeat itself on the plea of res adjudicata, and it would be €qually strange if a suit to subject equities and compel contribution could not be maintained on the equity side of the court. See 1 Story's Equity, 478, 479; Taylor v. Mechanics' Pire Ins. Co. 9 H. 390; Gar- rison v. Memphis Pire Ins. Co. 19 H. 313 ; Oerlich v. Spain, 15 Wall. 211; Ad. Eq. 267. See La. Eev. Civ. Code, art. 1427. �The argument of counsel as to the complete and adequate reme- dies the complainant has in the state courts may be perfectly sound, but complainant has a right to sue in the United States courts, and is not compelled to seek the jurisdiction of the state. In this court fae has exhausted his remedy on the law side, and if he can now find any remedy on the equity side I think we may give it to him. �The third objection seems to me to have force. The two defend- ants Francis T. Bohne and Bertha A. Bohne, it is conceded, accepted their fatuer's succession, with the benefit of inventory, and are not ��� �