Kimble v. Western Union Tel. Co. 99 F. 892

DALLAS, Circuit Judge.

In October, 1899, when this case was upon the then current list for trial, the defendant filed, and brought to the attention of the court, a petition for an order staying proceedings until the costs of a former suit between the same parties, for the same cause of action, pending in the United States circuit court for the district of Maryland, should be paid. The plaintiff claimed that this application came too late, and ought not to be entertained, because, as he alleged, it would be unfair to subject him. by reason thereof, to a continuance of his cause, when he was actually in court and ready for trial. He insisted that, if sufficient notice had been given, he would have been able to show by evidence that the petition was not well founded; and, in view of this insistence, leave was given him to then take depositions, and pending that proceeding the case was retained upon the calendar for trial (if entitled) at that term. The plaintiff, however, did not avail himself of the opportunity thus afforded him. He has offered no testimony. He let the matter rest until about'the 13th inst., when he himself set it down for hearing upon petition, answer, and replication. Upon that hearing his counsel directed attention to certain documents on file in this court, but upon carefully examining them I do not find that they contain anything which strengthens his position. I am of opinion that he should.not be allowed to proceed further in the present action until he shall have paid the costs of the former one. Kimble v. Telegraph Co. (C. C.) 70 Fed. 888. An order granting the prayer of the defendant’s petition will be entered.