Barnett v. Kilbourne

Full title: BARNETT and RICHEY, Respondents, v. KILBOURNE, Appellant

Court: Supreme Court of California

Date published: Oct 1, 1853

3 Cal. 327 (Cal. 1853)

Opinion

3 Cal. 327 BARNETT and RICHEY, Respondents, v. KILBOURNE, Appellant Supreme Court of California October, 1853

         Appeal from the Seventh Judicial District.

         JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Wells, Justice, concurred.

         OPINION

          HEYDENFELDT, Judge

         The demurrer in this suit ought to have been sustained. The bill seems to be only an application for a new trial. It shows upon its face that the same subject-matter had been litigated between the same parties in a prior suit, and that in said suit the plaintiff in this suit had set up in defence the equity which he claims by his present bill. The allegation of ignorance in making the necessary averments, or of insufficient conduct in the prosecution of the first suit, do not constitute grounds for relief in Chancery.

         The judgment is reversed, and the bill dismissed.