Page:Federal Reporter, 1st Series, Volume 10.djvu/711

 MOCH V. TIBQINIA FIBB & MABINB INS. CO. 699. �was such' an agent as that such service of process would bind said defendant to bring it into court; and so, that the defendant is bound and concluded by said judgiiient, and estopped by said judgment to plead here anew the matters and things passed upon and determined there. �The plaintiff f urthermore replies : �(2) That the defendant is estopped from pleading that John W. Taber was its agent, that plea having been pleaded in the suit in Louisiana and deter- mined against it. �To this replication the plaintiff demurred. �Legh R. Page and Frank W. Christian, for plaintiff. �Wm. W. e Beverly T. Crump, for defendant. �Hughes, D. J. This case is before me now on the defendant's demurrer to the plaintiff's replication. Avoiding technicalities, the plaintiff 's contention is that the defendant was properly sued and brought into court in Louisiana by semce of process upon such an agent of the defendant, John W. Taber, as could be served with the process under the laws of that state; that, besides, the defendant appeared to the suit there, pleaded defective service of process, claimed that it was not in court, and was overruled on that issue thus raised by itself, by a court of general and competent jurisdiction, and is therefore estopped from pleading the same matters here. �The contention of the defendant, teehnically alleged by its plea and set out argumentatively in the very able and learned brief of counsel, is that the citation served on Taber was insufficient to bring it into court ; that its appearance there was only for the purpose of suggesting to the court its want of jurisdiction because of the mat- ters alleged in its "exception" filed there ; that it is not bound by the judgment of the court on that or any other question; and that the judgment is a nullity, and would be treated as such in Louisiana, and should be so treated here. �The first question presented to me, though it is not the pivotai one in this case, is whether the "exception," the "peremptory exception," used in the practice of Louisiana, is to be treated in common-law courts as a plea by which the defendant sets out matters of law and fact in defence of the action, and submits himself to the judgment of the court upon them, or is a mere suggestion or protest of record by which the defendant commits himself to nothing at all ; as to which it matters not at all to him whether the court considers and passes upon it or not, and which, when entered of record, is a matter of futile surplusage. ��� �