Mr. Edward Lander, contra.
The filing of pleas in bar, after judgment sustaining the demurrer to a plea in abatement, is an acquiescence in such judgment. Bell v. Railroad Company, 4 Wall. 598; United States v. Boyd, 5 How. 29; Townsend v. Jennison, 7 id. 706; Morsell v. Hall, 13 id. 212; Shepherd v. Graves, 14 id. 505; Spencer v. Lapsley, 20 id. 264.
There was no error in the judgment of the court below sustaining the demurrer. Bowen et al. v. Joy, 9 Johns. 219; West v. McConnell, 5 La. 424; 7 Am. Com. Law, 357; Lowry v. Hall, 2 Watts & S. (Pa.) 133; McJilton v. Dove, 13 Ill. 494; Walsh v. Durkin, 11 Johns. 99; Salmon v. Wootten, 9 Dana, 422.
The courts of the District of Columbia are not, in the constitutional sense, courts of the United States. They are in the nature of territorial courts, and were established in the exercise of the power of exclusive legislation over the territory selected as the seat of government.
The bill of exceptions filed in this case, Aug. 13, 1874, nunc pro tunc, is not legitimately a part of the record. It was not settled and signed within the time required by the sixty-fourth rule of the Supreme Court of the District of Columbia. Being defective, it will not be considered by this court. Miller et al. v. Ehler, 91 U.S. 249.
The services rendered for which this suit was brought were strictly professional, and clearly within the rule announced in Wright v. Tebbitts, 91 U.S. 252; Wylie v. Coxe, 15 How. 415; Trist v. Child, 21 Wall. 450.
MR. JUSTICE CLIFFORD delivered the opinion of the court.
Services were rendered by Robert J. Atkinson, in his lifetime, as attorney for the defendants in prosecuting a claim, in their behalf, against the United States, before the accounting offi ers of the Treasury Department; and the plaintiff instituted the present suit in the Supreme Court of the District to recover compensation for those services, including a claim for services rendered by the decedent and by himself, as such administrator, in the same case, since the decease of the intestate.
Process was served; and the defendants appeared and pleaded in abatement the pendency of a prior suit in a State court for the same cause of action, and tendered a certified copy of the prior writ and return in support of the plea; to which the plaintiff demurred, and assigned for cause that the pendency of a prior suit in a State court is no stay or bar to a suit in the court below. Hearing was had; and the court sustained the demurrer of the plaintiff, and gave leave to the defendants to plead to the merits.
Pursuant to that leave, the defendants pleaded nil debet and non assumpsit; upon which issues were duly joined. Subsequently the parties went to trial; and verdict and judgment were for the plaintiff, in the sum of $9,185.18. Exceptions to the rulings and instructions of the court, and to the refusals of the court to instruct the jury as requested, were filed by the defendants; and they sued out a writ of error, and removed the cause into this court.
Ten errors are assigned by the plaintiffs in error; but, in the view taken of the case, it will not be necessary to give them a separate examination.
Two questions are presented, arising out of the ruling of the court in sustaining the demurrer of the plaintiff below to the plea in abatement filed by the defendants: 1. Whether the defendants did or did not waive the demurrer, by subsequently pleading to the merits. 2. Whether the pendency of a prior suit in a State court is a bar to an action subsequently commenced in the Supreme Court of this District.
Authorities are referred to by the defendant in error, which support the proposition that pleading over to a declaration adjudged good on demurrer is a waiver of the demurrer; and there are many other decided cases to the same effect. Aurora City v. West, 7 Wall. 92; Bell v. Railroad, 4 id. 602; Clearwater v. Meredith, 1 id. 42; United States v. Boyd, 5 How. 51; Evans v. Gee, 11 Pet. 85; Jones v. Thompson, 6 Hill, 621.
Suppose it were otherwise, still it is insisted by the defendant in error that the pendency of a prior suit in another jurisdiction is not a bar to a subsequent suit in a circuit court or in the court below, even though the two suits are for the same cause of action; and the court here concurs in that proposition.