now, over one year from the injury, there is not complete recovery. I find no evidence in the record on this subject, and therefore can not consider it. The demahd lor interest on account of delay through the appeal is better founded. Five per cent. may be allowed, the legal rate in this state. No appeal should have been taken on the evidence submitted below. Let a. decree be entered for $162.50, with interest at 5 per cent. from January 10, 1880, and for costs in favor of libellant, and . against l'espondents and sureties.
S.D. New York. January 28, 1882,)
AS CO-LlBELLANT'-MAVREPRESENT INTEREST OJ'
The mortgagee of a vessel sunk by 8 collision is entitled, for the protection of his mortgage interest, to come:in on petition 89 co-libellaI).t in a libel.filed by the owners against the offending vessel. He may also represent in such petition the interest of insurers, by their consent, who have paid a part of the
In SU(lh cases the jurisdiction rests upon the tort. The. injury to the mortgagee's interest by the destruction of the vessel is an injury recognizable in admiralty; and the marine tort entitles him to relief here, since he could maintain an action of trespass on the case at common law for 8 simUarinjury on land.
In Admiralty. Petition for leave to beconie co-libellants.
W., If. McDougall, for Martin & Kaskell.
D. ct· T.McMahon, for the Grand Rep.ublic. I BROWN, D. J. On the twenty-second of June, 1880, a libel was
filed in the above case by the libellants, as owners oftha' steam-boat Adelaide,for damages from her being sunk in a collisibn. with the (Grand Republic: on the nineteenth of June, through the'aIlegec1!ault At the time 'of the loss of the Adelaide the present - of the petitioners, the. Rarlan& Hollingsworth Company, held it mortgage the Adelaide, on sum of $20,000 was 'owing. A portion of the loss has· been paid to the mortgagees by certaininsur. anee companies, in whose behalf also, as well as for themselves, the
THE GRAND REPUBLIC.
petitioners now ask leave to become .oo-libellants to reeover for the injury to their interest as mortgagees of the vessel sunk by the 001· lision. The tenth rule of this court provides that "in oase of salvage and other causes, oivil and maritime, persons entitled to participate in the recovery, but not made parties in the original libel, may, upon petition, be admitted to prosecute as co-libellants, on such terms as the oourt may deem reasonable." It is clear that the petitioners, as mortgagees, would be entitled "to participate in the recovery" for the destruction of their interest as mortgagees through the loss of the Adelaide. Admiralty courts have jurisdiction in all cases of maritime torts connel}ted with navigation, and this jurisdiction is ex.ercised in favor of all persons who would have a remedy at common law for similar injuries by an action Qn tl;1e case. Philadelphia W. If B. Go. v. Philadelphia If H. De G. Go. 23 How. 209,215. A mortgitgee atcommQn can maintain an action of trespass, or of trespass, upon the case, f<)r any injury to his interest as mortgagee, (Van Pelt v. Mt;qraw, 4 N. Y. 11Q; Manning v.Monaghan, 23,.N .Y. 539;) and whenever 8uoh an injury arises through a marine tort, henas, therefore, upon, the general principles of admiralty jurisdiction, III right to relief in this court. "All persons interested in the canse of action J?lay 'be libellants; in a collision, for instance, the owners of t4e t'lhip Which Js the shippers of the goods, and all persons. affected by the injur,y the.sl\bjectonhesl1it." Dunlap,_A"dp:1. T,he most proper course to join all such persons in one suit, that the rights of all may be determined in one trial and in one judgment. The petitioners are, therefore, within the provisions of rule 10, above quoted, and the general principles governing the joinder of parties. There is some ambiguity in the language of the libel, so that it is not certain whether the libellants seek to recover the entire value of the vessel sunk, or only their own interest therein. A special reason, therefore, exists in this case for the joinder of the petitioners for the I'ecovery of the damage to their interest as mortgagees through the same oollision. Objections have been made to the petitioners' right to become colibellants, upon the ground that admiralty has no jurisdiction to enforoe a mortgage lien or to give a mortgagee possession. Bogart v. The John
Jay, 17 How.31W; Schuchardt v. The Angeliq1Le, 19How. 239; TheSailor Prince,l Ben. 461; Morgan v. Tapscott, 5 Ben. 252. These cases, how-
ever, are all cases of actions by the mortgagee for the enforcement of hiB
rights of contract under the mortgage directly against the mortgaged vessel. But it being held that the mortgage of a vessel is not a maritime contract, no other ground of admiralty jurisdiction in these cases existed. The claim of the present petitioners is wholly different. It is for an injury to the petitioners' interest in one vessel inflicted through a marine tort by another vessel. In such cases the admiralty has jurisdiction in favor of the injured party against the offending vessel by reason of the maritime tort; and the 'petitioners have an interest in the vessel injured which is perfectly recognizable in admiralty, and which is therefore sufficient to entitle them to seek relief for that tort in this tribunal. Where jurisdiction of the res in admiralty has already. been otherwise acquired in direct proceedings against the mortgaged vessel itself the mortgagee's interest in the res is recognized, and he may intervene for the protection of his interest either before or after the sale. The Old Concord, 1 Brown, Adm. 270; Schu. chardt v. The Angelique,19 How. 239, 241. The petition shows that the petitioners represent the insurance companies and act by their authority, and they may therefore prosecute in behalf of the insurers, as well as of themselves, for the full amount of the mortgage interest. Fretz v. Bull, 12 How. 466, Monticello v. Mollison, 17 How. 152, 155; Garrison v. Memphis Ins. Co. 19 How. 812; Hall v. Railroad Cos. 13 Wall. 367; Campbell v. The Anchoria, 9 FED. REP. 840. The prayer of the petition is therefore granted, and the petitioners may come in as co.libellants upon the usual stipulation for costs.
DI BE IOWA & MINNESO'L'A OONSTRUOTION 00.
In re IOWA & MINNESOTA CONSTRUOTION Co.
B00NE and another v. IOWA & MINNESOTA CONSTRUCTION Co. and others.
(Oircuit Oourt, D.lo'llJa, N. D. January, 1882.)
OF CAUSE-WHO MAy-INTERVENORS.
Where the intervening petition charges fraud, and is not in t.he nature of a bill, charging errors or irregularities merely, or where it charges want of jurisdiction and want of notice to complainants, and where no attack is made on any final judgment, but only on interlocutory orders, still within the control of the state court, intervenors may remove the cause.
Where there has been no final trial or hearing, intervenors may remove the cause on the ground of local prejudice, on compliance with the prOVisions of the act of congress.
The filing of the petition in the state court ipso facto removes the cause. 4.
SAllE-RIGHT OF REMOVAL-RECEIVER.
The petition of intervention is in the nature of a suit for relief as against defendants therein named, and the right of removal is not affected by the fact that a receiver had been appointed by the court to wind up the affairs of the corporation. IS.
SAME-RIGHT OF INTERVENORS.
The right of intervenors to a preliminary injunction to rest.rain further pro· ceedings until there can be a hearing on the merits, follows as a matter of course.
Motion to Remand. MCCRARY, C. J. That the intervening petition, filed in this case in the state court by George Boone and Francis E. Hinckley, presents a controversy between citizens of Illinois on one side and. citizens of Iowa on the other side, is conceded. But it is insisted that the case was, nevertheless, not removable, because the petition of intervention is a supplementary proceeding, so connected with the original proceeding as to form an incident to it, and substantially a continuation of it. To determine whether or not this is so we must look to the record. The proceedings in the state court were instituted in 1875 by a petition presented by L. Schoonover, trustee, alleging that he was a judgment creditor of the said Iowa & Minnesota Construction Company, and stating the names of the stockholders in that corporation, with the sum subscribed by each. He alleged the insolvency of the corporation, and prayed the appointment of a receiver. This v.l0,no.4-26