Page:Federal Reporter, 1st Series, Volume 8.djvu/543

BBooss V. o'hara. 629 ���Brooks & Hardy v. O'Hara Bros. �[Circuit Court, p. lowa. 1881.) �1. EqUITT PLBADrNG— A.LTEKNATIVE AXIiEOATIONS. �A bill is demurrable because too indeflnite, wherein it is alleged that the decree which ia sought to be set aside was obtained either by the mistake of all parties, or by deception practiced upon the complainant, or by the collusion of the respondent with third parties. �2. SaMB — AVBRMBNTS UPON INFORMATION AND BkIiIEF— FbAUD — INJONCTIONS. �Where aa Injutiction is aalied for, in the flrat instance, upon the grouud of fraud, the facts constituting the fraud must be made to appear l)y positive averments, based upon the Icnowledge of the complainant, or that of some one else who is personally cognizant of them. Allegations based upon information and belief only are Insufflcient. �3. Rbs Adjudicata. �One is estopped from raising any question which might have been deter- mined in a former suit between the same parties and upon the same subject- matter, provided he was not prevented from raising it in such former suit by the wrongful act of the other party, �Bill in equity brought to set aside a decree in favor of respondents, establishing a mechanic's lien upon the Burlington & South western Railway for $39,763.26, heretofore rendered in this court. The ma- terial allegations of the bill are the following : �"Your orators represent and show to the court that heretofore, to-wit, about 1870, the Burlington & Southwestem Railway Company, a corporation in lowa, constructing, owning, and operating a railroad in lowa and Missouri, by a certain deed of trust, duly and legally executed, conveyed its railroad property and franchises to your orators and one James F. Joy, who subse- quently assigned his interest in said trust to your orators; said railway Com- pany being then and now a citizen of the state of lowa, and your orators cit- izens of the state of Massachusetts, and said James F. Joy a citizen of the state of Michigan. �"That said deed of trust was made to secure certain bonds, to be issued by said railway company to aid in constructing said railway, to the amount of $20,000 per mile of road, which bonds were actually issued and sold ; and said railway having made default in payment of interest on said bonds, your ora- tors flled their bill to foreclose said mortgage in this court, and such proceed- ings were had that on the eighth day of June, 1871, a decree of foreclosure was entered, whereby it was found and decreed by the court that said com- pany was indebted to your orators in the su m of million dollars, and �said property ordered to be sold. �"Your orators further state and charge that said respondents, prior tol874, were engaged in constructing a certain portion of said road, having a contract to do the grading under J. W. Barnes, who was the original eontractor, and which grading was to be done at certain prices set ont and stipulated between him and said Burlington & Southwestern Railway Company. V.8,no.8— 3e ��� �