Imágenes de páginas
PDF
EPUB

has same citizenship as complainant.” A proceeding to determine the ownership of property levied on under an execution is not removable to the Federal court. 10 The claim is but an incident to the main proceeding and cannot be detached from it. If, however, the claim is to property levied on under attachment, and the attachment is removed, the claim goes with it. 11 A garnishment proceed. ing is not such a controversy as can be removed, separate from the principal action, to the Federal court on the ground of citizenship. 12 Pending a suit for the foreclosure of a mortgage, plaintiff amended by asking for a reformation of the mortgage in certain technical particu ars. Held, that the prayer for a reformation was merely inci. dental to the main object of the suit, and did not create a separable controversy within the meaning of the removal act. 13 A contest involving the removal of an executor, and the appointment of another, is not removable to the Federal court. It is a mere incident to the settlement of the succession. Nor has the Federal court concurrent jurisdiction with the State court of such a contest. ?* A supplementary proceeding, inseparably connected with the original decree, is not removable to the United States

But a suit by a judgment creditor to subject land in the name of the debtor's brother to the payment of the judgment, on the ground that the purchase price of the land was paid by the debtor, is not supplementary or auxiliary to the original suit. 16 A suit merely auxiliary to the original action cannot be removed by the plaintiff to the circuit court of the United States from a State court under the Act of Congress of 1867.17 It cannot entertain jurisdiction of a proceeding, even between citizens of different States, that is merely ancillary to a suit be. tween the parties pending in a State court, when the relief sought may be obtained by application to the State court. 13 Nor where the gravamen of the bill is that there was such a want of parties, process, and other steps as to make the decrees in the original case void. In such case, there is a complete remedy at law.1"

1 The Cortes Co. v. Thannhauser, 9 Fed. Rep. 226; Chittenden v. State, 9 Fed. Rep. 226; Clark v. Opdyke, 17 N. Y. Super. 383.

2 Pratt v. Albright, 9 Fed. Rep. 631.
3 Cook v. Whitney, 3 Woods, 715.
4 N. Y. Silk Manuf. Co. v Second Nat. Bank, 10 Fed. Rep. 204.

15 court.

5 Buford v. Strother, 10 Fed. Rep. 406. See Webber v, Humphreys, 5 Dill. 223; Chapman v, Barger, 4 Dill. 557.

6 Fairchild v. Durand, 8 Abb. Pr. 305. 7 Ellis v. Sisson, 11 Fed. Rep. 353. 8 Corbin v. Van Brunt, 105 U. S. 576; Ellis v. Sisson, 11 Biss. 187. 9 Bacon v. Rives, 106 U. S. 713. 10 Flash v. Dillon, 22 Fed. Rep. 1. 11 Hochstadter v. Harrison, 71 Ga. 21. 12 Pratt v. Albright, 10 Biss. 511; Poole v. Thatcher, deft., 19 Fed. 49. 13 Winchell v. Coney, 27 Fed. Rep. 482. 11 Burnside's Succession, 34 La. An. 728. 15 Wolcott v. Aspen, M. & S. Co., 34 Fed. Rep. 821. 16 Kalamazoo Wagon Co. v. Snavely, 34 Fed. Rep. 823 17 First Nat. Bank of Alexandria v. Turnbull, 83 U. S. 190. 13 Hazard v. O'Bannon, 33 Fed. Rep. 220. 19 Yeatman v. Bradford, 44 Fed. Rep. 536.

Ø 96 y. Matters auxiliary are inseparable.Matters auxiliary to the cause of action set forth in the original libel or bill may be included in the cross suit and no others; as the cross suit is, in general, incidental to and dependent upon the original suit. The filing of a cross-bill is not the commencement of a new suit, but a mode of defense, and the relief sought is that to which the party became entitled upon the filing of the bill and relates back to the commencement of that suit. It is in. separable from the original suit, both together constituting one cause. Where the circuit court has jurisdiction of the original bill it has jurisdiction of the cross-bill without reference to citizenship. Where the court has acquired jurisdiction by reason of citizenship, a cross-bill is treated as ancillary to the main cause properly before the court. Parties sued in equity cannot, by cross bill against the other, litigate their disputes inter sese. After dismissal of the original bill, where affirmative re. lief is sought by a cross-bill, the right 10 make

final decree on the cross-bill is not affected by the circumstance that plaintiff and defendant in such cross-suit are citizens of the same State.? A proceeding, a mere continuation, or supplementary, where jurisdiction had been obtained on the ground, of citizenship, may be continued without regard to citizenship. 8 A court having once obtained rightful jurisdiction of the parties can retain it until complete relief is afforded with

6

a

in the general scope of the subject-matter of the action.' It will decide all incidental matters necessary to enable it to make a final determination of the whole controversy. 10 If the controversy contains any equitable features, or requires any purely equitable relief the court may go on to a complete adjudication, and may thus establish purely legal rights and grant legal remedies which would uther. wise be beyond the scope of its inquiry. So in cases of discovery the suit will be retained to afford complete relief (see Sanborn v. Kittredge, 20 Vt. 632; Handley v. Fitzhugh, 1 A. K. Marsh. 24); as to decree payment of money (see Franklin Ins. Co. v. McCrea, 4 Greene (Iowa), 229; Mays v. Taylor, 7 Ga. 238; Souder's App. 57 Pa. 498; Zetelle v. Myers, 19 Gratt. 62); or damages in a suit for specific performance. (See Boyd v. Hunter, 44 Ala. 705; Corby v. Bean, 44 Mo. 379; De Bemer v. Drew, 39 How. Pr. 466; Cuff v. Dorland, 55 Barb. 481; 1 Pom. Eq. Jur. 169.)12

1 The Mayflower v. The Dove, 91 U. S. 385; Ayres v. Carver, 58 U. S. 595; Shields v. Barrow, 58 U.S. 145.

2 Pierce v. Chace, 108 Mass. 260; Cartwright v. Clark, 4 Met. 104; White v. Buloid, 2 Paige, 1u4.

3 Eve v. Louis, 91 Ind. 470; Hall Lumber Co. v. Gustin, 54 Mich. 524; Cartwright v. Clark, 4 Met, 104; Kemp v. Mackrell, 3 Atk. 812; Donohoe v. Mariposa Land & Min. Co., 6 Ceut. L. J. 487; 5 Sawy. 163; Galatian v. Erwin. Hopk. Ch. 59; Ayres v. Carver, 58 U. S. 595; Slason v. Wright, 14 Vt. 210.

4 First Nat. Bank v. Salem Capital F. M. Co., 31 Fed. Rep. 580. Contra, Vennerson v. Leverett, 31 Fed. Rep. 376.

5 Bland v. Fleeman, 23 Fed. Rep. 669.
6 Vennerson v. Leverett, 31 Fed. Rep. 376.
7 Jesup v. Illinois C. R. Co., 43 Fed. Rep. 483.
8 Miller v. Rogers, 23 Fed. Rep. 401.

9 Ward v. Todd, 103 U. S. 327; McHan v. Ordway, 82 Ala. 463; Robinson v. Rippey, 111 Ind. 112; Central Trust Co. v. Wabash, St. L. &. P.R. Co., 29 Fed. Rep. 546.

10 Otis v. Gregory, 111 Ind. 504; Robinson v. Appleton, 124. 11 Crane v. Bunnell, 10 Paize, 333; Varet v. New York Ins. Co., 7 Paige, 560; Carpenter v. Osborn, 102 N. Y. 552; quoting 1 Pom. Eq. Jur. 168. See King v. Baldwin, 17 Johns. 381; Rathbone v. Warren, 10 Johns. 596; Hawley v. Cramer, 4 Cowen, 717; Bradley v. Bosley, 1 Barb. Ch. 225; Billups v. Sears, 5 Gratt. 31; Rust v. Ware, 6 Gratt. 50; Parker v. Kelly, 10 Smedes & M. 184; Jesus College v. Bloome, 3 Atk. 262, 263; Ambl. 54; Ryle v. Haggie, 1 Jac. & W.234 237; Carlisle v. Wilson, 13 Ves. Jr. 276. 278, 279; Adley v. Whitstable Co., 17 Ves. Jr. 315, 321; Pearce v. Creswick, 2 Hare, 286, 296; Mackenzie v. Johnston, 4 Madd. 373; Martin v. Tilwell, 36 Ga. 332, 315; Walker v. Morris, 14 Ga. 323; Keeton v. Spradling, 13 Mo. 321; State v. McKay, 43 Mo. 594, 598; Pope v. Solomons, 3; Ga. 541, 545 Gilliam v. Chan

cellor, 43 Miss. 437; Carlisle v. Cooper, 21 N. J. Eq. 576; People v. Chicago, 53 Ill. 424.

12 Sharon v. Terry (Cal.), 13 Sawyer, 387.

3

96 z. Ancillary jurisdiction of Federal courts. After a Federal court has acquired jurisdiction through the existence of the necessary difference of citizenship between the original parties, ancillary proceedings may be therein instituted, although parties upon the different sides of the controversy are citizens of the same State, and there is no other ground of Federal jurisdiction. If necessary to protect their rights parties may intervene, regardless of citizenship. A substantial Federal question being involved in the case at the outset, its elimination does not oust the court of jurisdiction. After jurisdiction of a suit has once attached, a Federal court may exercise ancillary jurisdiction, without regard to the citizenship of the parties.* It is not divested by a subsequent transfer of the cause of action by which the controversy becomes one between citizens of the same state. But an ancillary bill, filed after the appointment of a receiver, should be dismissed. A circuit court has jurisdiction in a suit in equity which is ancillary to an action at law of which it has already acquired jurisdiction."

1 Dunn v. Clarke, 33 U. S. 1; Clarke v. Mathewson, 37 U. S. 164; Freeman v. Howe, 65 U. S 450; Minnesota Co v. St. Paul Co., 69 U. S. 609; Jones v. Andrews, 77 U. S 327; Krippendorf v. Hyde, 110 V. S. 276; Pac. R. Co. v. Mo. Pac. R. Co., 111 U. S. 505; Seymour v. Phillips & C. Construction Co., 7 Biss. 460; Christmas v. Russell, 81 U. S. 69; Foster, Fed. Jur. Acts, 15; Thompson v. McReynolds, 29 Fed. Rep. 657.

2 Bland v. Freeman, 29 Fed. Rep. 669; Osborne v. Barge, 30 Fed. Rep. 805.

3 Omaha Horse R. Co. v. Cable Tramway Co., 32 Fed. Rep. 727.
4 Stewart v. Dunham, 115 U. S. 61.
5 Jarboe v. Templar, 38 Fed. Rep. 213.
6 Mercantile Trust Co. v. Kenawha & O. R Co., 39 Fed. Rep. 337.

7 Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329; Krippendor? v. Hyde, 110 U. S. 276; Pacific R. Co. v. Missouri P. R. Co., 111 Ú. S. 506.

§ 97. On ground of prejudice, or local influence. And where a suit is now pending, or may be hereafter brought in any State court in which there is a controversy between a citizen of the State in which the suit is brought and a citi.

L

zen of another State, any defendant, being such citizen of another State may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice he will not be able to obtain justice in such State court, or in any

other State court to which the said defendant may, under the laws of the State, have the right on account of such prejudice or local influence, to remove said cause; provided, that if it further appears that said suit can be fully and justly determined as to the other defendants in the State court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be remanded, so far as relates to such other defendants, to the State court, to be proceeded with therein. (Clause 4 of section 2 of the Act of March 3, 1887, 24 U. S. Stats. 552, as corrected August 13, 1888, 25 U. S. Stats. 433; covering the subject of subdivision 3 of the Rev. Stats. section 639.)

§ 97 a. Prejudice and local influence defined. The prejudice and local influence mentioned in the statute is not merely a prejudice or influence primarily existing against the party seeking a removal. It includes as well that preju lice in favor of his adversary which may arise from the fact that he is long resident wnd favorably known in the community. The element of local influence implies that in a controversy between a stranger and resident parties, having the power to direct or aid in the direction of political parties, and control the selection of public officers, the former may be at a great disadvantage, if not powerless to as sert his right. A construction of a law by the highest State court, which

1

« AnteriorContinuar »