HINSDALE-DOYLE GRANITE 00. V. TILLEY.
(Circuit Court, N. D.llUnois. November. 1881.)
OREDITOR'S BILL-MuNICIPAL DEBT.
Municipal corporation held to answer Demurrer of the city of Chicago that a municipal corporation cannot be held to answer a creditor's bill, overruled·.
In Chancery. O. A. Knight, in support of the demurrer:
This proceeding is in effect the same as garnishment, and the courts hold, and public policy requires, that municipal corporations should be exempted from answering in mere proceedings to collect debts. Merwin v. Ghica.go, 45 Ill. 13a; Chicago v. Halsey, 25 Ill. 596; Triebel v. Colburn, 64 Ill. 376; Dillon, Mun. Corp. § 65. Also, the bill makes no allegation that there is money in the city's treasury to pay this judgment, which the city could only be compelled to pay by mandamus.
H. M. Matthews, contra:
At law, in the construction of garnishment statutes, there .is no generallyrecognized principle of public policy exempting municipal corporations from their effect. City of Newark v. Funk, 15 Ohio St. 462; Hadley '¥. Peabody, 13 Gray, 200; Bray v. Wallingfurd, 20 Conn. 416; WhiddelL v. Drake, 5 N. H.13; Wales v. Muscatine, 4 Iowa, 302; N. Y. Procedure. Equity jurisdiction is ancient and ample, and not limited by the construction given to garnishment acts. Balch v. Westall, 1 P. Wms. 445; Smithier v. Lewis, 1 Vernon, 398; Stileman v. Ashdown, 2 Atk.477; Taylor v. Jones, 2 Atk. 602; Pendleton v. Perkins, 49 Mo. 565; Singer & Talcutt Stone Co. v. Wheeler, 6 Bradw. 225; Lyell v. Sup'rs of St. Clair Co. 3 McLean, 580. No execution against the city is asked by the bill, and no question about a 1nanaamus can be raised by the demurrer.
BLODGETT, D. J. I have no doubt that this is a proper proceeding against the city. It operates to place the complainant in the shoes of the creditor of the city, ani! requires the city to pay to the complainant. The court has jurisdiction to entertain a creditor's bill of this kind, where a municipal corporation is a party defendant, and I think the demurrer should be overruled. Let the demurrer to the bill by the city of Chicago be overruled
DUNCAN v. GREENWALT.(Circuit Court, E. D. Missouri. 1.
March 21, 1882.)
COURTS 011' EQ.UITy-JURISDICTJON-PRACTICE-STATUTORY ACTIONS.
Where the statutes of a state, in which the distinction between actions in cbancery and suits at law is abolished, provide for a particular action, the question whether a federal court held in that state should regard that action, when brought before it, as legal or equitable, must depend upon the facts stated and the relief sought. If the suit appears to be in the nature of a suit in equity, it should go upon the equity calendar, and be proceeded with in accordance with the equity rules.
2. SAME-SAME-AcTION TO QUIET TITLE.
Courts of equity have jurisdiction over suits to quiet the title to real estate.
In Equity. This is a bill in equity filed by the complainant to quiet the title to certaiu real estate, situated in the city of St. Louis, by removing a cloud therefrom, caused, as is alleged, by the execution to the defendant's grantor of a certain tax deed. It is alleged that the pretended tax sale, and the deed executed in pursuance thereof, were void because of the failure to comply with the provisions of the statute of Missouri concerning tax sales. The respondent demurs to the bill upon the ground that under certain statutes of Missouri the complainant has a plain, speedy, and adequate remedy at law. E. Ounningham, Jr., for complainant. E. R. Monk, for respondent. MCCRARY, C. J., (orally.) The bill as it now stands is plainly a bill to quiet title to the real estate in controversy by removing a cloud therefrom, and it is properly brought upon the equity side of the court, in accordance with long-established rules, unless it be true, as claimed by counsel for the respondent, that a plain, speedy, and adequate remedy at law is provided by certain statutes of Missouri. The first of these is section 6852 of the Revised Statutes of Missouri, which provides as follows:
" Any person hereafter putting a tax deed on record in the proper county shall be deemed to have set up such a title to the land described therein as shall enable the party claiming to own the same land to maintain an action for the recovery of the possession thereof against the grantee in deed, or any person claiming under him, whether such grantee or person is in actual posession of the land or not."
Counsel for the respondent is in error in insisting that a remedy given by statute is necessarily a remedy at law. The Code of MisoIl'Heported by B. F. Rex, Esq., of the St. Louis bar.