Page:Federal Reporter, 1st Series, Volume 9.djvu/245

 230 FEDERAL REPORTER. �mediately before his death, an inliabitant of said county ;" tliafc he lef t as assets the claim now sued upon, and no other property; that he left no cieditors and no will; that she herself, the mother of said deeeased, "residing in said city of Portland," two minor half-sisters, who " reside with your petitioner in said city," and a minor brother, residing in Cambridge, Vermoiit, wore the only next of kin and heirs at law of the said intestate. The petition alleges all other jurisdictional and necessary facts and in said petition petitioner expressly renouneed her right to administer upon the estate of deeeased, and prayed the court to grant letters of administration to II. W. Davis, whom she alleged to be a fit and competent person to administer upon said estate. Act- ing upon said petition, the county court of Multnomah county, at a regular term of said court, on December 16, 1878, in an order made and entered in the records, in which it was recited that it was " proved by the oath of the petitioner, Eiggs, that the said William A. Perkins died on or about the six- teenth day of November, 1878, intestate, in the county of Multnomah and state of Oregon, being, at or immediately before his death, an inhabitant of said county," etc., oidered that letters of administration on the estate of said intestate be issued to H. W. Davis; and letters were accordingly issued, and said Davis qualified and entered upon his duties as such administrator — the proceedings being all in due form and regular upon thpir face. The said order and appointment are still unrevoked and in full force. Afterwards, on January 2, 1879, said Davis, as such administrator, brought an action at law against the defendant in the circuit court of Oregon, under section 637 of the Code of Oregon, for the identical cause of action alleged in the libel herein, in which issue was joined, and in which there was a trial by jury and a verdict in favor of the defendant, upon which verdict a final judgment was regularly entered on March 31. 1879. Said judgment was afterwards duly afflrmed, on appeal, by the supreme court of Oregon, on August 11, 1879; and it still remains in full force and effect. Afterwards, Sidney Dell, who had been the attorney of Mrs. Eiggs and said administrator, Davis, in the said prier proceed- ings, flled a petition, as petitioner, in the county court of Jackson county, Oregon, in which it is alleged " that deeeased was, at and immediately before his death, an inhabitant of said county of Jackson, in said state of Oregon;" that the same parties mentioned in the said prier petition were next of kin and heirs at law, etc. ; that the said cause of action was the only estate of deeeased ; that there were no ereditors ; that more than 40 days had elapsed since the death of the intestate, and neither the widow, next of kin, nor any crediter had " made application within that time to this court for letters of administration," and praying that Leander Holmes be appointed administra- tor, whereupon said Holmes was appointed such administrator on September 17, 1879. Holmes, having qualified and received his letters, filed the libel in this suit for the identical cause of action brought by Davis, administrator, in the state court. In addition to the issue taken on the case made by the libel, the defendant sets up as defences — First, that libellant was never adminis- trator; second, the prior adjudication in the state courts. At the hearing at the last term, although the court intimated that its impressions were against the libellant upon other points, the case was in fact decided upon the first point named— that the libellant was never administrator. This point haa ��� �