Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

even though there is a subsequent appeal, upon which all the matters decided can be retried. When, after the appraisal by commissioners, a trial by jury can be had upon demand, the proceedings can be removed at or before the time when such demand is made.10 When there is no such proceeding in the court of first instance, a removal may take place after an appeal to another court, where the question as to the amount of damages to be awarded can be retried.11

The existence of a controversy as to the right to condemn the lands, which is distinct from that of the amount of damages to be awarded, does not prevent a removal.12

§ 538g. Removal of proceedings to settle water rights. Proceedings before the Oregon Water Board of Control by the users of water in a stream to determine the rights of the appropriators thereof are not removable so long as they are pending before the board; but they might be after the evidence and the orders of the board have been filed in the State Circuit Court.1

§ 538h. Removal of proceedings to assess betterments. It has been held that proceedings under the Indiana, Missouri,2

9 Madisonville Traction Co. V. St. Bernard Min. Co., 196 U. S. 239, 49 L. ed. 462 (under Kentucky statute); affirming 130 Fed. 789.

10 Minneapolis, St. P. & S. S. Ry. Co. v. Nestor, 50 Fed. 1 (under North Dakota 'statute).

11 Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206; Pacific Railroad Removal Cases, 115 U. S. 1, 10, 18, 29 L. ed. 319, 322, 325; Searl v. School District, 124 U. S. 197, 199, 31 L. ed. 415, 416; Warren v. Wisconsin V. Ry. Co., Fed. Cas. No. 17,204, 6 Biss. 425 (under Illinois statute); Hudson River R. & T. Co. v. Day, 54 Fed. 545 (under New Jersey statute); Terre Haute v. Evansville & T. H. R. Co., 106 Fed. 545 (under Indiana statute); Kirby v. Chicago & N. W. R. Co., 106 Fed. 551 (under Iowa statute);

Myers v. Chicago, N. W. Ry. Co., 118 Iowa 312, 91 N. W. 1076.

12 Searle v. School District, 124 U. S. 197, 31 L. ed. 415; Madison Tr. Co. v. St. Bernard Min, Co., 196 U. S. 239, 49 L. ed. 462 (decided by a divided court of five to four); Sugar Creek, P. B. & P. C. R. Co. v. McKell, 75 Fed. 34; Helena Power Transmission Co. v. Spratt, 146 Fed. 310 (under Montana statute)..

[ocr errors]
[blocks in formation]

4

Iowa, and Arkansas statutes for the establishment of drainage districts and the assessment of the betterments therefrom arising may be removed, after the report of the commissioners has been filed in the State court. The report of the commissioners is considered as a complaint; the petitioners for the drain as complainants and the remonstrants or opponents of the proceedings as defendants.5 Where the propriety of the construction of the drain is disputed, there can be no separate controversy therein; 6 but a separate controversy arises when the sole matter in dispute is as to the amount of the assessments against different landowners. It has been held that a proceeding under the Illinois statute in a court with full judicial power to assess real estate for the cost of a sewer in proportion to the benefits therefrom derived are not removable.8

§ 5381. Removal of proceedings to collect claims against counties. Proceedings upon a claim presented to a board of county officers cannot be removed while they are pending before such board. It has been held, however, that an appeal to a court of record from the decision of a county board upon such a claim may be removed. In such a case, the claimant was considered to be the plaintiff, although the appeal had been taken by a taxpayer from a decision allowing the claim.3

§ 538j. Removal of creditors' bills. A creditor's bill, founded upon a judgment of a State or Federal court, may be removed, when the requisite difference of citizenship exists.1 It has been held that a creditor's bill, when the plaintiff has not reduced

:

3 Chicago, M. & St. P. Ry. Co. v. Drainage Dist. No. 8 of Shelby County, Iowa, et al., 253 Fed. 481.

4 St. Louis Southwestern Ry. Co. v. Commissioners of Road Improvement Dist. No. 2, 265 Fed. 524. 5 Re Jarnecke Ditch, 69 Fed. 161, 167, 168.

6 Ibid., St. Louis Southwestern Ry. Co. v. Commissioners of Road Improvement Dist. No. 2.

7 Drainage Dist. No. 19 v. Chicago, M. & St. P. Ry. Co., 198 Fed. 253.

8 Re City of Chicago, 64 Fed.

897; criticised in Re Stutsman County, 88 Fed. 341.

§ 538i. 1 Gurnee v. Brunswick, Fed. Cas. No. 5,872 (1 Hughes 270); Fuller v. Colfax County, 14 Fed. 177 (4 McCrary 535).

2 Delaware County Com'rs v. Diebold, S. & L. Co., 133 U. S. 473, 33 L. ed. 674 (under Indiana statute); Fuller v. Colfax, 14 Fed. 177 (under Nebraska statute).

3 Tullock v. Webster County, 40 Fed. 706.

§ 538j. 1 Kalamazoo Wagon Co. v. Snavely, 34 Fed. 823.

his claim to judgment, cannot be removed, although the State practice authorizes such a suit; 2 that a bill in equity to enforce the lien of an attachment by the plaintiff, having a simple contract debt or claim for unliquidated damages, can be removed; 3 and that a garnishee proceeding, after judgment, is to be considered as a new suit, which may be removed by the garnishee, when his citizenship is different from that of the original plaintiff and defendant.*

§ 538k. Removal of ancillary and supplemental suits. A suit, which is ancillary and supplemental to one previously brought in a State court, and which is so connected with the original suit as to form an incident thereto, and to be substantially a continuation thereof, cannot be removed into District Court of the United States, unless the original suit has been previously, or may be, simultaneously, removed.1

It has been said, that "there is no language in any removal act, which justifies the removal of a cause from a State court to a Federal court, on the ground that it is ancillary to a suit in a Federal court." 2

It has been held that the following cases are not removable : proceedings to determine the disposition of a fund which has been deposited in the registry of a State court to await its further order.3 Proceedings by an intervenor in sequestration proceedings. 4 Proceedings supplementary

2 Cates v. Allen, 149 U. S. 451, 37 L. ed. 804; First Nat. Bank v. Pragler, C. C. A., 91 Fed. 689; supra, §§ 82, 83.

3 Craddock v. Fulton, 140 Fed. 426.

4 Baker v. Duwamish Mill Co., 149 Fed. 612.

§ 538k. 1 Barrow v. Hunton, 99 U. S. 80, 82, 25 L. ed. 407, 408; Marshall v. Holmes, 141 U. S. 589, 35 L. ed. 870; Webber v. Humphreys, Fed. Cas. No. 17,326 (5 Dill. 223); Chapman v. Barger, Fed. Cas. No. 2,603 (4 Dill. 557); Buford v. Strother, 10 Fed. 406 (3 McCrary, 253); Poole v. Thatcherdeft, 19 Fed. 49; Flash v. Dillon, 22 Fed. 1;

to execu

[merged small][ocr errors][merged small]

5

tion, although instituted by a supplemental bill. An application for the appointment of a receiver in such supplementary proceedings. Applications by claimants of property, which has been seized under execution.8 Suits for injunctions against the sale under execution of land. Proceedings by or against strangers to the original suit, in connection with garnishee process,10 but not contra, when property in the hands of a Federal collector of customs had been attached.11 It is doubtful whether a removal can be had of an action of replevin against the sheriff to recover property, on which he has levied by writ of attachment.12 No removal was allowed of: suits in equity by a tenant to set up a defense to an action of ejectment, which, by the State practice, he might have pleaded in that action.13 A proceeding by the plaintiff, after a decree establishing his rights to the products of a mine, to enforce his rights under such decree

the work of construction by entering into contracts, etc., the fact that a controversy arises between him and a contractor, or between a contractor and other claimants of a common fund, does not entitle the contractor to remove the cause to a Federal court, especially after the State court has proceeded, without objection, to adjudicate upon the rights of the parties. Buell v. Cincinnati, E. & Q. Const. Co., 9 Fed. 351, 10 Biss. 555.

5 Webber v. Humphreys, 5 Dill. 223; Poole v. Thatcherdeft, 19 Fed. 49; Buford v. Strother, 3 McCrary 253; s. c., 10 Fed. 406; Flash v. Dillon, 22 Fed. 1.

6 Smith v. St. Louis Mut. Life Ins. Co., 3 Tenn. Ch. 350.

7 Cœur d'Alene Ry. & N. Co. v. Spalding, C. C. A., 93 Fed. 28.

8 First Nat. Bank v. Turnbell, 16 Wall. 190, 21 L. ed. 296; Flash v. Dillon, 22 Fed. 1; Hochstadter v. Harrison, 71 Ga. 21.

9 Lawrence v. Morgan's Louisiana & T. R. & S. S. Co., 121 U. S. 634,

7 Sup. Ct. 1013, 30 L. ed. 1018;
Besser v. Munford, 63 Ga. 446;
Goodrich v. Hunton, 29 La. Ann.
372; Watson v. Bondurant, 30 La.
Ann. 1; Calhoun v. Levy, 33 La.
Ann. 1296; Ralston v. British &
American Mortg. Co., 37 La. Ann.
193; Edwards Mfg. Co. v. Sprague,
76 Mainė 53; Rogers v. Rogers
(New York), 1 Paige 183; or chat-
tels, Kelly, Maus & Co. v. Sioux
Nat. Bank, 81 Fed. 3.

10 Pratt v. Albright, 9 Fed. 634,
10 Biss. 511; Buford v. Strother,
10 Fed. 406, 3 McCrary 253; Poole
v. Thatcherdeft, 19 Fed. 49; or at-
tachments, King v. Shepherd, 20
Fed. 337.

11 Fischer v. Daudistal, 9 Fed.

145.

12 Burnham v. First Nat. Bank, C. C. A., 53 Fed. 163.

13 Chapman v. Barger, Fed. Cas. No. 2,603, 4 Dill. 557; Richmond & D. R. Co. v. Findley, 32 Fed. 621. See Cable v. Ellis, 110 U. S. 389, 28 L. ed. 186; Johnson v. Christian, 125 U. S. 642, 31 L. ed. 820.

[ocr errors]

against the defendant to the original suit and a third person, who claims a superior title by purchase.14 A proceeding under a State statute to charge with liability, to the extent of corporate assets in their hands, the directors of a railway company, which has passed out of existence pending a suit against it.15 A bill in equity setting up a prior judgment for damages for a nuisance, and an action pending at law for the same purpose, which prays consolidation. A perpetual injunction and damages subsequent to the beginning of the pending action at law.16 A bill of review for errors apparent upon the face of the record,17 or for fraud,18 without showing that the facts constituting the fraud were not within the knowledge of the complainants before the rendition of the decree, or could not have been discovered in time to bring them in some appropriate mode to the attention of the State court, while the decree was within its control.

It has been held that the following cases are removable, when the requisite difference of citizenship exists and the matter in controversy is of the jurisdictional amount: a bill in equity, such as one to reform an insurance policy, which is filed in aid of a suit of law and seeks to prevent a party from availing himself of an inequitable claim or defense in a pending suit at common law,19 or to enjoin a condemnation proceeding when the relief prayed could not have been obtained in the pending action.20 A bill to set aside a judgment or decree of a State court for mistake 21 or fraud,22 which mistake or fraud could

14 Wolcott v. Aspen, M. & S. Co., 34 Fed. 821.

15 Houston & Texas Cent. R. Co. v. Shirley, 111 U. S. 358, 28 L. ed. 455. See also Hospes v. N. W. Mfg. & C. Co., 22 Fed. 565.

16 Ladd v. West, 55 Fed. 353. 17 Barrow v. Hunton, 99 U. S. 80, 25 L. ed. 407; Goodrich v. Hunton, 29 La. Ann. 372; Ranlett v. Collier White Lead Co., 30 La. Ann. 56; Jackson v. Gould, 74 Maine 564.

18 Nougue v. Clapp, 101 U. S. 551, 25 L. ed. 1026; Graham v. Boston, H. & E. R. Co., 118 U. S. 161, 177, 30 L. ed. 196, 204; Marshall v.

Holmes, 141 U. S. 589, 600, 35 L. ed. 870, 874; Caswell v. Caswell, 24 Ill. App. 548; affirmed 120 Ill. 377, 11 N. E. 342.

19 Charter Oak Fire Ins. Co. v. Star Ins. Co., Fed. Cas. No. 2,623 (6 Blatchf. 208).

20 Georgia R. & Banking Co. v. Atlantic P. Tel. Cable Co., 152 Fed. 991.

21 Pelzer Mfg. Co. v. Hamburg B. F. Ins. Co., 62 Fed. 1.

22 Johnson v. Waters, 111 U. S. 640, 667, 28 L. ed. 547, 556; Arrowsmith v. Gleason, 129 U. S. 86, 101, 32 L. ed. 630, 635; Marshall

« ΠροηγούμενηΣυνέχεια »