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Walter A. Wood Harvester Co. v. Minneapolis-Esterly Harvester Co. (C. C.).... 256 Walton v. United States (C. C.).. Walton, Richardson v. (C. C. A.). Ward, Louisville & N. R. Co. v. (C. C. A.) 927 Warn v. Davis Oil Co. (D. C.).. 631 Warwick Cycle Manuf'g Co., Overman v. (C. C. A.)

Washita Cattle Co., Exchange Nat. Bank of Atchison v. (C. C.)... Watrous, Mudsill Min. Co. v. (C. C. A.)... 163 Weeks v. Wilson Transit Co. (C. C. A.)... 120 Weeks, Philadelphia Novelty Manuf'g Co. v. (C. C. A.). 405 Weeks, Tripp Giant Leveler Co. v. (C. C.) 289 Wells City, The, Morris Beef Co. v. (C. C. A.) Wessels v. The Ceres (D. C.).. Wessels, Sydsvenska Angfartygs Aktiebolag,v. (Ď. C.)................

486

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525
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Wood Harvester Co. v. Minneapolis-Es-
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CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS.

HURST v. COBB et al.

COOKE V. SAME.

(Circuit Court, N. D. Texas. April 5, 1894.)

Nos. 1,808, 1,809.

REMOVAL OF CAUSES-CASES ARISING UNder Federal Laws.

An action against private parties to recover damages for wrongfully causing a United States marshal to levy an execution on plaintiff's chat tels is a case arising under the laws of the United States, and is therefore removable under section 2 of the act of August 13, 1888. Bock v. Perkins, 11 Sup. Ct. 677, 139 U. S. 629, applied.

This is an action at law, brought in a court of Texas by J. D. Hurst against Cobb & Avery, to recover damages for wrongfully causing a United States marshal to levy an execution of plaintiff's chattels. Defendants removed the case to this court, and it is now heard on a motion to remand.

McCormick & Spence, for plaintiff.
Cobb & Avery, in pro. per.

RECTOR, District Judge. In this case the plaintiff sued the defendant in the district court of Hunt county, Tex., for $4,977, the alleged value of 170 head of cattle belonging to plaintiff, upon which defendants caused an execution, in the hands of P. B. Hunt, United States marshal for the northern district of Texas, to be levied, and said cattle sold under said execution. That said execution issued out of cause No. 1,036, wherein W. W. Avery, as plaintiff, recovered a judgment in the United States circuit court in and for the northern district of Texas, against J. H. Cooke, O. F. Hail, William Hodges, and J. M. Johnston, for $2,638. That said Hunt, United States marshal, acted by and through his deputy, T. B. McMurray, in levying said execution on said cattle, and also in selling them. That said defendants caused said execution to be issued and levied on said v.61F.no.1-1

property of plaintiff, and caused the same to be sold thereunder. Defendants filed their application for removal, averring that the property levied on and sold under the execution by the marshal was the property of the defendant in the execution, J. H. Cooke, and that the damages claimed against the defendants in the case at bar arose entirely out of the acts of the United States marshal and his deputies. Defendants say that their defense arises under the constitution and laws of the United States.

2. The case was removed to this court on said application of de fendants, and now the plaintiff appears, and moves that the case be remanded to the state court, "because the record discloses no removable federal question."

3. Section 2 of the removal act of March 3, 1875, provides:

"That any suit of a civil nature at law or in equity now pending or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the constitution or laws of the United States, either party may remove said suit," etc.

The said section was afterwards amended by act of August 13, 1888, so as to read as follows:

"Sec. 2. That any suit of a civil nature at law or in equity arising under the constitution or laws of the United States, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending or which may hereafter be brought in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district." 1 Supp. Rev. St. (2d Ed.) p. 612.

When we turn to the first section of the same act, we find:

"That the circuit courts of the United States shall have original cognizance concurrent with the courts of the several states of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000.00, and arising under the constitution or laws of the United States." See page 611.

4. The contention here is whether this case arises under the constitution or laws of the United States. In Carson v. Dunham, 121 U. S. 427, 7 Sup. Ct. 1030, the court draws the distinction between the second section of the act of 1875 and section 709, Rev. St., which provides for review by the supreme court of the decisions of the highest courts of the states, and says:

"That under the act of 1875, for the purpose of removal, the suit must be one arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority; that is to say, the suit must be one in which some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the constitution or law or treaty of the United States, or sustained by a contrary construction."

The case of Bock v. Perkins, 139 U. S. 629, 11 Sup. Ct. 677, was an action against the United States marshal and his deputies for levying an attachment on goods in the possession of Bock, the plaintiff in error. The attachment was sued out against Lane, who had assigned the goods to Bock. The case was removed to the United States court, and there was a motion to remand, which was overruled. The supreme court sustained the removal to the United States circuit court, and in so doing say:

"A case, therefore, depending upon the inquiry whether the marshal or his deputy has rightfully executed a lawful precept directed to the former from a court of the United States is one arising under the laws of the United States, for, as this court has said, cases arising under the laws of the United States are such as grow out of the legislation of congress, whether they constitute the right or privilege or claim or protection or defense of the party, in whole or in part, by whom they are asserted. This case was one arising under the laws of the United States, and therefore removable."

To the same effect is Ellis v. Norton, 16 Fed. 4; Houser v. Clayton, 3 Woods, 273, Fed. Cas. No. 6,739.

In the case of Howard v. Stewart (Neb.) 52 N. W. 714, the plaintiff in execution had given bond to the marshal, and, when the latter was sued, plaintiff intervened, set up the facts, and asked to remove case to the United States court. Held he might remove, as the marshal had that right. It seems to us in the case at bar that, inasmuch as the United States marshal, if sued in the state court, might remove the case to this court, that the defendants can also do so.

Motion to remand overruled.

Let the same order be entered in

No. 1,809, of John H. and M. E. Cooke v. Cobb & Avery.

SWEENEY v. GRAND ISLAND & W. C. R. CO. et al.

(Circuit Court, D. South Dakota, W. D.

REMOVAL OF CAUSES-SEPARABLE CONTROVERSY

LIENS.

April 14, 1894.)

SUIT TO ENFORCE MECHANICS'

A suit to enforce a mechanic's lien against a railroad, under a statute which requires all lien holders to be made parties, and their claims and priorities adjudicated (Laws S. D. 1893, c. 116, § 4), is not removable on the ground that there is a controversy between plaintiff and the railroad company which is separable from the matters affecting other lien holders who are defendants, and citizens of the same state with plaintiff. Supp. Rev. St. p. 612.

This was an action by Thomas Sweeney against the Grand Island & Wyoming Central Railroad Company; John and David Fitzgerald, copartners as John Fitzgerald & Bro.; John Carroll, Samuel E. Donoghue, and Frank P. Phillips, late copartners as Carroll, Donoghue & Co.; and the Congdon & Henry Hardware Company. The action was brought in a state court to enforce a mechanic's lien, and was removed to this court by the railroad company. Plaintiff moved to remand.

Charles W. Brown and Martin & Mason, for plaintiff.

N. K. Griggs, for defendant Grand Island & W. C. R. Co.

SANBORN, Circuit Judge. The plaintiff, Thomas Sweeney, makes a motion to remand this case to the circuit court of Pennington county, S. D. He brought this action in that court to enforce a mechanic's lien against certain real property of the railroad company situated in South Dakota, upon which the Congdon & Henry. Hardware Company also claims to have a similar lien. The rail

road company and John Fitzgerald and David Fitzgerald are citizens of Nebraska, and the company removed this action to this court on the ground that there was a controversy in it wholly between the plaintiff on one side and the railroad company and the two Fitzgeralds on the other, which could be fully determined as between them; but Thomas Sweeney and the Congdon & Henry Hardware Company are citizens of South Dakota, and it is claimed that this fact is fatal to the jurisdiction of this court.

Since the act of congress of August 13, 1888 (Supp. Rev. St. p. 613), the order of the circuit court refusing to remand a case to a state court is reviewable, but the order granting a motion to remand is final, and is not subject to review by any higher court. The right or removal is a cherished and valuable right, and an order that cannot be reviewed, and that determines that this right does not exist in any case, ought not to be granted without careful consideration, nor without due regard to the fact that, if erroneous, it leaves the petitioner remediless. In this view I have examined this case, and have become satisfied that this court has no jurisdiction of it, and that it would be futile to let it proceed to trial. That clause of section 2 of the act of March 3, 1887, as amended by the act of August 13, 1888, under which this action was removed, reads as follows:

"When in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district." Supp. Rev. St. p. 612.

The statutes of South Dakota under which this action was brought provide that:

"Any person having a lien by virtue of this article may bring an action to enforce the same in the circuit court of the county or judicial subdivision where the property charged with such lien is situated, and any number of persons claiming liens against the same property may join in the same action, and whenever an action is brought by any one or more of them the court before proceeding in such action shall require that all persons claiming liens against the same property be brought in and made defendants or join with the plaintiff as shall seem to the court to be just and proper, and the court shall direct the time and manner of service, and may order service to be made by publication as in other cases and with like effect. The court may render judgment for or against one or more of the plaintiffs and for or against one or more of the several defendants and shall determine the ultimate legal and equitable rights of all the parties, and shall determine what liens are established, and the several amounts thereof, and may direct the sale of the property charged with said liens and direct the application of the proceeds of such sale to the satisfaction of all liens which have been established in said action ratably in proportion to the amounts thereof and without regard to the order of filing said liens, and the court may also allow as part of the costs the money paid for filing each lien and the sum of five dollars for drawing the same." Sess. Laws S. D. 1893, c. 116, § 4.

A suit against the owner of real property, and the holders of coeval and junior incumbrances upon it, to foreclose a lien and to subject the property to sale, to satisfy the lien, rests on a single and indivisible cause of action. The relief which the plaintiff seeks in such a suit is not the bare adjudication of the amount owing

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