Page:Federal Reporter, 1st Series, Volume 4.djvu/23

 MOONEY V, AGNEW. 9 which judgment has been rendered against some of the defend- ants, and no appeal taken by those defendants from the judg- ment, that as to those defendants the controversy is ended; and, so far as it is still an existing controversy, standing be- tween the plaintifï and those who still contest the right of the plaintiff, it may be removed into this court. But that is not the position of this case. The controversy is still going on; still waged between the plaintiff and the defendants against whom judgment has been taken, as well as against thoso against whom no judgment has been taken. If we consider f urther the attitude or the case in the state court, and the position of these parties who have been brought in, the reason for this conclusion will be more apparent. This writ whioh has been issued is in the nature of a writ of scire facias, and it is to make the other parties, the persons served, parties to the judgment which has been rendered against the two defendants, and from which an appeal has been taken. If it should resuit in the supreme court of the state that this judgment should be reversed, there would be no ground of proceeding against these parties who are now served, because they are to be made parties to the judgment which is already of record in the district court of the state. If that judgment should be removed by the action of the supreme court of the state, there would be no basis for proceeding against these defendants. This proceeding stands upon the theory that there is a judgment in the district court of the state to which these persons are to be made parties; and, if that judgment should be reversed or set aside, there could be no proceeding against them. Of course, we cannot be put in the position of having a suit here which will be subject to the contingency of reversai of the judgment of the district court of the state» The cause will be remanded aocording to the motion.