121 U.S. 634
7 S.Ct. 1013
30 L.Ed. 1018
MORGAN'S LOUISIANA & T. R. & S. S. CO. and others.
May 2, 1887.
[B. R. Forman, for plaintiff in error.
H. J. Leovy, for defendants in error.
WAITE, C. J.
This is an appeal under section 5 of the act of March 3, 1875, c. 137, (18 St. 470,) from an order of the circuit court remanding a suit or proceeding which had been removed from a state court. The record shows that a fieri facias had been issued out of the Nineteenth judicial district court for the parish of St. Mary, Louisiana, on a judgment in that court at the suit of Robert Todd, trustee, against Robert B. Lawrence, under which certain lands claimed by Mrs. Frances E. Lawrence, a citizen of New Jersey, had been seized and advertised for sale on the second of June, 1883, by Minos Gordy, the sheriff of the county. The judgment had been assigned to Morgan's Louisiana & Texas Railroad & Steam-Ship Company, a Louisiana corporation, and on the thirty-first of May, 1883, Mrs. Lawrence caused to be prepared what is called, in the practice of the courts of Louisiana, a 'petition of third opposition,' to be filed in the Nineteenth judicial district court of the parish of St. Mary, to restrain Todd, the trustee, the railroad o mpany, and the sheriff, from selling the property under the seizure, claiming it as her own. This is a proceeding authorized by the Code of Practice of Louisiana, (articles 395, 396,) but it must be had in the court which rendered the judgment in virtue of which the seizure has been effected, (article 397.) The petition was verified by the oath of Mrs. Lawrence May 31st, and in her affidavit she stated 'that Hon. T. S. GOODE, the judge of the Nineteenth judicial district in and for the parish of St. Mary, is absent from said parish.' A bond was also executed on the same day, such as the Code of Practice required in case of the allowance of an injunction, and at the foot of the petition, as printed in the record, is the following:
'Considering the allegations and prayer of the foregoing petition, it is ordered that the third opposition of the plaintiff be, and is hereby, allowed to be filed, and that an order and writs of injunction issue, as prayed for, on plaintiff giving bond and security, according to law, in the amount equal to onehalf of the claim under which the seizure enjoined was made.
'Granted at Franklin, parish of St. Mary, this thirty-first day of May, A. D. 1883.
[Signed] 'J. B. VERDIM, Jr., Clerk.'
All these papers were filed with the clerk of the Nineteenth judicial district court on the first of June, and also the following:
'PARISH OF ST. MARY, June 1, 1883.
'I hereby accept service of the foregoing petition and writ of injunction herein prayed for, and waive service of citation on me in the premises.
[Signed] 'M. T. GORDY, Sheriff.'
The record also shows a petition by Mrs. Lawrence to the judge of that court, setting forth that she had 'sued out of your honorable court a third opposition, coupled with a writ of injunction,' for the purpose of restraining the sale under the seizure, as above stated, and praying for the removal of such suit to the circuit court of the United States for the Eastern district of Louisiana, on account of the citizenship of the parties, she being a citizen of New Jersey, and all the defendants citizens of Louisiana. At the foot of this petition, as printed in the record, is the following:
'On the pleadings and proceedings herein, and on the petition and bond filed herein by plaintiff, Mrs. Frances E. Lawrence, under the provisions of the acts and laws of the United States to regulate the removal of causes from state courts, and for other purposes, and on motion of counsel of petitioner in said case and the foregoing petition, it is ordered that the security offered by Mrs. Frances E. Lawrence, plaintiff therein, to-wit, Townsend Lawrence, be approved, and that the state court proceed no further in the cause, and that this cause be removed into the circuit court of the United States for the Eastern district of the state of Louisiana next to be held in said district.
'Dated this first of June, 1883.
[Signed] 'F. S. GOODE, Judge.'
The petition for removal and this order were filed with the clerk of the court on the second of June. On the fifty of November following, the suit was entered in the circuit court, and on the twentieth of March, 1884, the defendants moved that it be remanded. This motion was heard April 5, 1884, and granted April 7th. From the order to that effect this appeal was taken.
Section 720 of the Revised Statutes provides that 'the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy;' and, in Bondurant v. Watson, 103 U. S. 288, which was a suit removed from a state court on the application of the defendant after an injunction staying proceedings in the state court for his benefit had been granted, it was said: 'If Watson had filed his petition for injunction in the state court, and before it was allowed had petitioned for a removal of the cause to the circuit court, wih the design of applying to that court for his injunction, the objection to the right of removal would have force. That would have been an evasion of the statute.' Such clearly is this case. The petition for removal was filed by the party who brought the suit, and there is nothing whatever in the record to show that the injunction he asked for was ever granted by the court, or any judge thereof, prior to the removal. The affidavit of Mrs. Lawrence shows that the judge was absent from the parish at the time the order which is in the record signed by the clerk purports to have been granted; and we have been referred to no statute or judicial decision in Louisiana authorizing the clerk to make such an order in the absence of the judge. Under the circumstances, therefore, the case is to be treated as having been taken to the circuit court to get an injunction, and not after one had been granted. This, we have no hesitation in saying, cannot be done; and, without deciding whether, under any circumstances, a proceeding such as this was in the state court, can be removed to a circuit court, we affirm the order to remand. Affirmed.