Page:Federal Reporter, 1st Series, Volume 7.djvu/424

 412 FEDEBAIi BBPORTBIB.. �2. The separate plea in bar of the defendant Park to that part of the bill praying for an injunction against him in re- spect to the notes given for the settlement of the claims of the minois Tunnel Company, that the complainant has com- menced a suit against him to recover damages upon the same cause of action, which suit proceeded to a judgment in favor of the defendant, is clearly had, because it appears, by the record filed with and made part of the plea, that the judgment was rendered upon a nonsuit of the plaintiff, and not upon the merits. It is therefore no bar to a new suit upon the same cause of action, nor does it estop or conclude the plaintiff as to the facts alleged both in that action and in this suit as the ground or cause of action. �3. The second separate plea in bar to the same part of the bill last above referred to, is based onthe judgment recovered in the district court of the third judicial district of the terri- tory of Utah, upon the same notes, the collection of which is here sought to be restrained by injunction. Whether this judgment is binding and conclusive upon the complainant, depends upon the question whether the court acquired juris- diction of the person of the defendant in the action, the pres- ent complainant. The plea avers that the said defendant Park, plaintiff in that action, "caused the service by sum- mons in said action to be made by the United States marshal for said district upon the orator, through its duly authorized agent resident in said Sait Lake county aforesaid." By set- ting the plea down for argument, this averment is admitted to be true, except so far as the record, since produced and made part of the plea, shall contradict the averment. The record contains nothing inconsistent with this averment. On t' e contrary, the record recites that the defendant, the Emma Silver Mining Company, (limited,) was regularly served with process and failed to appear and answer, and accordingly judgment was entered by default against the defendant. Although it is competent for a defendant in a judgment record to contradict the record to the extent of showing that no personal service was made upon him, and thereby to avoid the effect of the judgment, showing in faot ��� �