D. L. Flack & Son, Inc. v. West Virginia Coal Co.

WOOLSEY, District Judge.

This motion is denied.

I have felt that I was bound to deny this motion under the authority of the Circuit Court of Appeals for this circuit in Zadig v. Aetna Insurance Co., 42 F.(2d) 142, 143, and the subsequent expression of views by Judge Coxe after the remand of the above-named case to this court. See Opinion in Zadig v. Ætna Insurance Co., L. 38 — 168, 46 F.(2d) 356, dated October 7, 1930.

In a common-law case a plea of res adjudieata is not possible unless and until a judgment has been entered. Reed v. Proprietors of Locks, etc., on Merrimac River, 8 How. 274, 290,…