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not, with the exercise of reasonable diligence, have been discovered before the decree passed beyond the control of the State court. A creditor's bill founded on a State judgment.23 Where a petition for intervention charged fraud or want of jurisdiction, without an attack on any final judgment, but only interlocutory orders, it was held that the intervenors might remove the cause.24

A suit begun by a petition asking for an injunction against the enforcement of previous judgments against the plaintiff and alleging extinguishment by compensation, error of fact and law, and the nullity of the judgments sought to be enforced was removed.25 Where a distress warrant issued by a justice of the peace was levied on land, and the defendant therein filed a "plea," which was subsequently dismissed; it was held that such dismissal terminated the proceedings in the court; and that a subsequent equitable action to restrain the progress of the warrant was a new, distinct, and original action, and not a mere ancillary proceeding to the justice court action, and was removable.26 The following cases were also removed: a proceeding to enforce a judgment purporting to have been entered by confession.27 A bill filed by a stranger to a previous suit and decree in order to prevent the execution of such decree by a levy upon property, of which the complainant was the owner before the former suit was brought.28 An action of replevin against a sheriff who has levied a writ of execution on chattels claimed by a stranger to the writ.29 A suit by a second mortgagee to redeem property from a foreclosure in a suit to which he was not a party.30 A proceeding to enforce an attorney's lien.31 A proceeding to enjoin a stranger from violating a

v. Holmes, 141 U. S. 589, 600, 35 L. ed. 870, 874; Carver v. JarvisConklin Mtge. Tr. Co., 73 Fed. 9.

23 Kalamazoo Wagon Co. v. Snavely, 34 Fed. 823.

24 Re Iowa & M. Const. Co., 10 Fed. 401 (3 McCrary 310).

25 Stackhouse v. Zunts, 15 Fed. 481, 4 Woods 171.

26 Withers v. John Hopkins Place Sav. Bank, 104 Georgia 89, 30 S. E. 766.

27 Lockhart v. Morey, 31 Fed.

28 Bondurant v. Watson, 103 U. S. 281, 26 L. ed. 447; Watson v. Bondurant, Fed. Cas. No. 17,278 (2 Woods 166).

29 Kern v. Huidekoper, 103 U. S. 485, 26 L. ed. 354.

30 Title Guarantee & Trust Co. v. Studebaker, 100 Fed. 358.

31 Pettus v. Georgia R. & Banking Co., Fed. Cas. No. 11,048, 3 Woods 620.

decree previously entered.32 It was held that a suit by a judgment creditor to subject land in the name of the debtor's brother on the ground that the purchase price was paid by the debtor, and the deed taken in the brother's name to defraud creditors, is not supplementary to the original suit, but an independent proceeding, and removable, 33 That an hypothecary action against a third possessor of mortgaged lands, who was not a party to the previous suit and judgment of the plaintiff against the former owner of the property, is a new suit, and not the mere continuation of the previous suit, so that for a diversity of citizenship the action may be removed to the Federal court, though the previous suit could not have been removed.34 A proceeding under a statute of Arkansas, which directs that, where lands are sold by a sheriff or other public officer, the purchaser is authorized to institute proceedings in a court calling on all persons to come in and show cause why the sale should not be confirmed, was removed.35 Where the necessary diversity of citizenship exists the following cases may also be removed: a suit in which a State court appointed a receiver.36 A suit for the appointment of a receiver ancillary to one previously appointed by a court in another suit.37 A suit by bondholders to foreclose a lien paramount to the rights of the stockholders, who had procured an order of a State court placing trustees in possession of the property.38 A feigned issue in Pennsylvania to try the validity of a judgment obtained by a creditor, which is attacked as fraudulent,39 and a motion under the Missouri statutes.40 An application for an execution against a stockholder after judgment and return of execution against his corporation. It

32 Hatch v. Preston, Fed. Cas. No. 6,208 (1 Biss. 19); Ward v. Congress Const. Co., C. C. A., 99 Fed. 598.

33 Kalamazoo Wagon Co. v. Snavely, 34 Fed. 823.

34 Garrett v. Bonner, 30 La. Ann. 1305.

35 Parker v. Overman, 18 How. 137, 15 L. ed. 318.

36 Re Iowa & M. Const. Co., 10 Fed. 401.

Fed. Prac. Vol. III-46

37 Shinney v. N. A. Sav., L. & B'g Co., 97 Fed. 9.

38 Scott v. Clinton & S. R. Co., Fed. Cas. No. 12,527, 6 Biss. 529. 39 Fuller v. Wright, 23 Fed. 833. 40 Mo. R. S., § 2517.

41 Lackawanna, C. & I. Co. v. Bates, 56 Fed. 737; overruling Webber v. Humphreys, Fed. Cas. No. 17,326 (5 Dill. 223).

was held that a suit originally instituted in a State court by an executor, legatee, who also sued as the agent of other legatees, nonresidents, claiming a sum of money from a liquidating partner as due to the succession of his deceased partner, was not an action merely incidental to the settlement of his succession of the deceased partner, nor an action supplemental to or auxiliary of any pending proceeding in such succession, nor in any sense an ancillary suit; but a separate, distinct, and independent suit, removable on the application of either party litigant.42

§ 538 1. Removal of proceedings to assess and collect taxes. A statutory appeal from an assessment of taxes to "a county court," which, in respect to such proceeding, acts not as a judicial body but as a board of commissioners without judicial power, and which is only authorized to determine questions of quantity, proportion and value, is not a suit which can be removed to a Federal court. It has been held that proceedings before the Oregon board of control by the users of water in a stream to determine the rights of the appropriators thereof," and, under the laws of North Dakota, to collect delinquent taxes, may be removed.

3

§ 538m. Removal of divorce suits. A suit for divorce cannot be removed, although the plaintiff demands alimony and counsel fees.1 A suit to collect a decree for alimony might be removed.2

§ 539. Removals when there are improper parties plaintiff. Where it appears on the face of the bill, that a person has been im, properly joined with others as a plaintiff; his citizenship should be disregarded when determining the rights of the defendants to a removal. Thus, where it appeared, on the face of the bill, that one of a number of plaintiff's was not entitled to relief, and that the others were the real parties litigant; his joinder did

42 Filer v. Levy, 17 Fed. 609. § 5381. 1 Upsher County v. Rich, 135 U. S. 467, 34 L. ed. 196 (under West Virginia statute).

2 Re Silvies River, 199 Fed. 495. 3 Re Stutsman County, 88 Fed. 337.

§ 538m. 1 Johnson v. Johnson, 13 Fed. 193; Bowman v. Bowman, 30

Fed. 849; Chappell v. Chappell, 86
Md. 532.

2 Barber v. Barber, 21 How. 582, 16 L. ed. 226.

§ 539. 1 McHenry v. New York, P. & O. R. Co., 25 Fed. 65; Over v. Lake Erie & W. R. Co., 63 Fed. 34; Jarvis v. Crozier, 98 Fed. 753.

not prevent a removal.2 Where, in a suit for a partition, plaintiff sued in his own right, and also as the next friend of two infants, to whom he was in nowise related, those infants being citizens of the same State as the defendants, and of a different State from that of the plaintiff; it was held, that the infants were improperly joined as plaintiffs; should be considered as defendants; and that such misjoinder could not prevent a removal. Where the legal owner of a cause of action, and the equitable assignees of different parts of the same, joined in an action at law; it was held, that the citizenship of the plaintiff having the legal cause of action alone could affect the right of removal. Where one of several plaintiffs is properly joined; but his presence is not indispensable to the maintenance of a bill; it has been held, that his citizenship must be considered when the right of removal is determined.5 Thus, the voluntary joinder of a number of complainants in enforcing a common liability of the defendants, upon which they might have sued separately, has the same effect on the right of removal because of difference of citizenship, as if they had been compelled to unite. Where it is alleged in the petition for removal, and proved to the satisfaction of the Federal court, that one of the plaintiffs has no interest in the controversy; the removal will be allowed.7

§ 540. Removals when there are improper parties defendant. Where persons are made defendants, against whom no relief is prayed, and their presence is not essential to a complete disposition of the controversy; or where the plaintiff's pleading states no cause of action against defendants, against whom relief is

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2 McHenry v. New York, P. & O. R. Co., 25 Fed. 65.

3 Jarvis v. Crozier, 98 Fed. 753. 4 Over v. Lake Erie & W. R. Co., 63 Fed. 34; Webb v. Southern Ry. Co., 235 Fed. 578.

5 Merchants Cotton Press & Storage Co. v. Insurance Co. of North America, 151 U. S. 368, 38 L. ed. 195; Florida Cent. & P. R. Co. v. Bell, 176 U. S. 321, 44 L. ed. 486; James v. Thurston, 6 R. I. 428.

6 Peninsular Iron Co. v. Stone,

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prayed, and it manifestly appears that they were joined in the suit for the purpose of preventing a removal; 2 or it has been said, where the complaint charges negligence generally against several defendants and does not allege with reasonable definiteness the facts which show that the cause of action is joint, that may be an indication of the fraudulent joinder; or, where it is alleged in the petition of removal and is proved to the satisfaction of the District Court upon a motion to remand, that parties, against whom relief is prayed, and the complaint or declaration states a cause of action, in fact have no connection therewith, the allegations in the plaintiff's pleading to that effect being intentionally false; the action may be removed if the requisite difference of citizenship exists between the plaintiff and the remaining defendants.*

2 Nelson v. Hennessey, 33 Fed. 113; Chattanooga, R. & C. R. Co. v. Cincinnati, N. O. & T. P. Ry. Co., 44 Fed. 456; Rivers v. Bradley, 53 Fed. 305; Hukill v. Maysville & B. S. R. Co., 72 Fed. 745; Prince v. Illinois Cent. R. Co., 98 Fed. 1; Mahon v. Somers, 112 Fed. 174; Loop v. Winters' Estate, 115 Fed. 362; Sidway v. Missouri Land & Live Stock Co., 116 Fed. 381; Kelly v. Chicago & A. Ry. Co., 122 Fed. 286; Carothers v. McKinley Mining & Smelting Co., 122 Fed. 305; Bryce v. Southern Ry. Co., 122 Fed. 709; Henry v. Illinois Cent. R. Co., 132 Fed. 715; Boatmen's Bank v. Fritzlen, C. C. A., 135 Fed. 650, aff'd as Fritzlen v. Boatmen's Bank, 212 IS. 364; Axline v. Toledo, W. Va. & O. R. Co., 138 Fed. 169; Curtis v. Cleveland, C., C. & St. L. Ry. Co., 140 Fed. 777; Iowa Lillooet Gold Min. Co. v. Bliss, 144 Fed. 446; Cella v. Brown, C. C. A., 144 Fed. 742; Chicago, R. I. & P. Ry. Co. v. Stepp, 151 Fed. 908; Floyt v. Shenango Furnace Co., 186 Fed. 539; McAllister v. Chesapeake & O. Ry.

Co., 198 Fed. 660; Price v. Southern Power Co., 206 Fed. 496; Richardson v. Southern Idaho Water Power Co., 209 Fed. 949; English v. Supreme Conclave, I. O. of H., 235 Fed. 630; Slaughter v. Nashville, C. & St. L. R. Co. (Kentucky), 91 S. W. 744, 28 Ky. Law Rep. 1195; Eastin & Knox v. Texas & P. Ry. Co. (Texas), 92 S. W. 838; judgment reversed Texas & P. Ry. Co. v. Eastin & Knox (Civ. App.), 89 S. W. 440.

Reinartson V. Chicago Great Western Ry. Co., 174 Fed. 707.

4 Wecker v. National Enameling & Stamping Co., 204 U. S. 176, 51 L. ed. 430; Collins v. Wellington, 31 Fed. 244; Dow v. Bradstreet Co., 46 Fed. 824; Shepherd v. Bradstreet Co., 65 Fed. 142; Hukill v. Maysville & B. S. R. Co., 72 Fed. 745; McCormack v. Illinois Cent. Ry. Co., 100 Fed. 250; Diday v. N. Y., P. & O. R. Co., 107 Fed. 565; Union Terminal Ry. Co. v. Chicago, B. & Q. R. Co., 119 Fed. 209; Ross v. Erie R. Co., 120 Fed. 703; Kelly v. Chicago & A. Ry. Co., 122 Fed. 286;

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