Page:Federal Reporter, 1st Series, Volume 7.djvu/864

 8S2 FEDSBAL BEPOBTBB. �to surrender the same; that the plaintiffs then commenced an action of replevin in the superior court of Marion county, Indiana, against the agents, Cottom, Poster, and Shantlin, for possession of the goods ; that the defendants appeared, and in the name of their agents controverted the title of the plain- tiffs to the goods; that the right of the plaintiffs to the goods was litigated, and a verdict and judgment were rendered for the defendants, and that this judgment is in full force and unreversed. �After admitting in their reply that they prosecuted their action in replevin to judgment, the plaintiffs aver that the defendants in this suit were not parties to the suit in the state court; that the suit in the latter court was not tried on its merits; that the right of the plaintiffs to the goods was not determined by that action; and that the plaintiffs failed in the state court because they had not, prior to the beginning of their suit, surrendered or offered to surrender to George Hazard the note that he had given for the goods ; for which reason the court instructed the jury to return a verdict for the defendants. �The judgment of the state court is conclusive between the same parties and their privies. The defendants in the first suit ! were the agents of the defendants in this suit. Through these agents the present defendants rasisted Olaflin & Co.'b claim of ownership in the state court. Extrinsio evidence is admissible to prove that a real party in a suit was not a party to the record, but that he prosecuted or defended the suit in the name of a nominal party; and whenever this is made to appear, thereal party is concluded by the judgment as effect- ually as if he had been a party to the record. It makes no difference that the first suit was for possession of the goods while the present one is for their value. The ownership of the goods was the controversy in the state court, and we have the same controversy in this court. The same proof that would entitle the plaintiffs to recover here, ought to have ■entitled them to a verdict and judgment in the state court. It may be that the judgment of the state court was erroneous. ��� �