Page:Federal Reporter, 1st Series, Volume 9.djvu/198

BBOWN V. PHILADELPHU, WILMINGTON & BALTIMORE E. 00. 183 �issue, and from the opinion of the court of appeals it clearly appears the court so considered it and passed upon it. �That Mrs. Flanagin may be now advised that she did not in the first case bring foiward all the evidence she had to support her side of that issue, of course, cannot now be heard as an objection to the estoppel, even if it were an issue in any way material after the adjudication of the court of appeals on the first point. Smith v. Town of Ontario, 4 Fed. Eep. 386. �In my judgment the complainant's bill must be dismissed. �HopMns V. Lee, 6Wheat. 109; Bank of U. 8. v. Beverly, 1 How. ISej Mflea V. CaMwell, 2 Wall. 85 ; Beloit V. Morgan, 7 Wall. 619 ; Corcoran v, Ganal Co, 94 U. S. 744; Hill v. Nat Bank, 97 U. S. 450; Campbell v. Mankin, 99 U. S. 261. ���Bbown v. Philadelphia, Wilmington & BaijTimobb R. Co. �{Uircuit Court, i>. Bdaware. November 16, 1881.) �1. l'RACTlCE— JUDOMBNT BY DeFAUI/T. �Judgment by default for want of an appearanoe taken ofl, and the defendant let in to try the case upon its merits, upon it appearing to the court that theire has been no negligence or laches upon his part in f ailing to have an appearanoe entered : and upon it further appearing that the attorney for the defendant mistookthejurisdictionof the court, andin point of fact endeavored to cause an appearance to be entered in another tribunal — i. e., the superior *ourt of the State of Delaware — in which he thought the suit had been brought. �Summons. Action on the case. Motion to strike off a judgment by default for want of an appearance, or to open the same, so as. to let the parties in to a trial on the merits of the case. �Georye V. Massey, for the motion, cited the following authorities : Wood v. Cleveland, 2 Salkeld, 518; Dobbs v. Paffer, 2 Strange, 975i; Evans v. mu, 1 Bos. & Pul. 52; 1 Tidd,567; Conklin v. Haven, 6 Johns. 126; Phillips V. Hawley, Id. 127; Davenport v. Ferris, Id. 130; Burrows v, Uillhouse, Id. 132; Platt v. Torrey, 18 Wend. 572; Breden v. Gilliland, 67 Pa. St. 841; Ster- ling V. lUtchey, 17 Serg. & R. 263; Pennington v. France, 2 Houston, 417; Bev. Code of Delaware, 603 ; section 914 Revised Statutes ; and a certificate as to the practice in the state courts signed by all the judges pf the superior court of the state of Delaware in the following words: �" Dover, November 5, 1881. " The practice in the superior court of this state is to take ofE a judgmetit hy default for want of appearance when the application for that purpose is made without unreasonable delay, and the court is satisfled that,the fai.lure of counsel to appear at the retnrn term was not owing to gross carelessness. In such cases an aflldavit of counsel is nevei- reqiiired, but. if iiisMed 'on, the court wouldorder it. iliey would, however, require to be satisfied; that the ��� �