
    HERMANN, Respondent, v. CULLERTON, Trustee, Appellant.
    (No. 5,903.)
    (Submitted March 3, 1926.
    Decided March 6, 1926.)
    [244 Pac. 484.]
    
      Appeal — Lack of Good Faith — Dismissal.
    1. Where defendant took part in litigation against him without challenging the jurisdiction of the district court, and upon rendition of judgment against him commenced an action in the federal court against plaintiff after perfecting his appeal to the state supreme court, and secured a decree permanently enjoining plaintiff from enforcing his judgment, from which decree plaintiff appealed to the federal circuit court of appeals, whereupon defendant filed his transcript on appeal from the judgment of the district court, his appeal will be dismissed.
    
       Appeal and Error, 3 C. J., see. 575, p. 688, n. 25.
    
      Appeal from District Court, Silver Bow County; Wm. F. Carroll, Judge.
    
    Action by J. G-. Hermann against certain persons doing business as Logan & Bryan, wherein Martin J. Cullerton, as trustee, etc., was substituted as defendant. Judgment for plaintiff and defendant appeals.
    Appeal dismissed.
    On motion to dismiss appeal.
    
      Mr. Harlow Fease, for Appellant.
    
      Messrs. Maury & Brown, for Eespondent.
   Opinion:

PEE CUBIAM.

Plaintiff commenced this action in the district eonrt of Silver Bow county to recover of certain persons, who were doing a stock brokerage business in the city of Butte as Logan & Bryan, the sum of $1,893.96. Logan & Bryan deposited that sum in court, whereupon they were discharged from liability and Martin J. Cullerton, as trustee of the estate of William J. McNulty, bankrupt, was substituted for them as a party defendant. Cullerton, trustee, answered, trial followed and judgment went against him. He then perfected an appeal to this court.

This case being in that condition, Cullerton, as trustee, corn menced a proceeding in the district court of the United ■States for the district of Miontana in which he asked that court to enjoin this plaintiff from enforcing the judgment of the district court of Silver Bow county. After proceedings had, the district court of the United States entered a decree in favor of Cullerton, trustee, plaintiff, against Hermann (this plaintiff) defendant, by the provisions whereof this plaintiff is permanently enjoined from in anywise enforcing the judgment obtained 'by him as aforesaid. From that decree the defendant in that action, plaintiff here, has Appealed to the circuit court, of appeals for the ninth circuit. After that Cullerton, trustee, appellant, filed in this court his transcript on appeal. The plaintiff has moved to dismiss the appeal.

Cullerton, as trustee, came voluntarily into the action begun by plaintiff against Logan & Bryan, undoubtedly assented to their action in depositing the money with the district court of Silver Bow county and took part in the litigation respecting it. He never questioned the jurisdiction of that court until it decided against him; then he appealed to this court to be relieved of the judgment, and then commenced an action in another forum to nullify that same judgment. His actions say, in effect, that, if he is successful in the circuit court of appeals, this court may do as it pleases; it will not matter to him. But if he loses there, will this court graciously relieve him nevertheless? This court will not suffer itself to be made a party to the scramble which the appellant has created.

The motion to dismiss the appeal is sustained.

Dismissed.  