THE EoA. PAOKER.
apart from any other cargo, and properly secured and dl1nnaged, because what did happen was very likely to happen; namely, that, being on an elevated part of the deck, if it escaped it would run back and flow over other articles. As to the proper placing of such barrels in such a cargo, there is no sufficient testimony produced to refute the statements of the stevedores that it was a customary and ]?roper place to put it. It could not be placed under articles of weight, and, wherever placed, if it escaped it was likely to spread. As it was, the damage would not have been considerable but for the fact that the shifting of the casks of soda-ash broke down the ventilators, and the rolling of the ship caused it to flow over the combings of the between-deck hatches, which were 8 to 10 inches in height. I have spoken principally of the damage to that part of the libelants' wire which was in the forepart of the ship. That which was under Nos. 3 and 4 hatches must have been but slightly injured; it did not come in contact with the sheep-wash, and was only damaged slightly by a small quantity of soda-ash which got on it from the one or two broken casks of soda-ash which broke in that part of the ship during the storms. On the whole testimony, I think the libel must be dismissed.
(District Court. S. lJ. New York. :May 8, 1884.) 1.
COLLISION-LoCAL I:lTATUTES-PROXIMATE CAUSE.
Where both steam-tugs were navigating in violation of local statutes, but there was plenty of time and space to avoid each other, the breach of the statute was held immaterial, as not a fault proximately contributing to the collision.
Where a tug with a tow is rounding the Battery within the eddy, and within 800 or 400 feet of the shore, another tug with a tow upon a hawser, coming down and crossing with the ebb-tide, has no right to cross the bow of the former in order to run between her and the New York shore, both from the inherent danger of such a maneuver, and the established usage of boatmen to the contrary ill rounding the Battery.
Where the tug E. A. P., with a tow lashed upon her port side. was rounding the Battery and going up the East river, the tide being strong ebb, and she was proceeding in the eddy, about 300 or 400 feet off the barge office, when the W., with the barge A. in tow upon a hawser of 20 fathoms, was seen coming down and across the East river from the direction of Roberts' slores, about 500 or 600 yards distant, and the E. A. P., being headed somewhat towards the New York shore, gave two whistles and put her helm to starboard, and the W. ported her helm and gave a strong sheer also towards the New York shore, in order to run inside the E. A. P., and the latter then stopped and backed, but the W., keeping on at full speed, crossed the bows of the E. A. P., but brought her barge into collision with the latter's tow, and the evidence being exceedingly conflicting as to the relative positions and bearings of . the two tugs when first seen, Iteld, that the W., when first seen, 'Was on the E. A. P.'s starboard hand, about one-third the distance to the Brooklyn shore, and much further out ill the stream than the E. A. P.; that the latter,
, the W. 's sheer to starboard, was nearly directly ahead of the W.; that, under the peculiar circumstances of navigation about the Battery, the exceptions i,_ the inspector's rules, as well as under statutorv rule 24, and the established local usage of boatmen, it was the duty of the -rV. to pass outside of the E. A.. P. in accordance with the two whistles of the latter; that she had no right to cross the E. A.. P.'s course near the shore; and that the latter was without fault and the W. solely responsible for the collision.
Benedict, Taft Benedict, for libelants. E. D. McOarthy, for claimants. BROWN, J. The libel in this case was filed to recover damages for the loss of the barge Atlanta, which was sunk in a collision with a boat in tow of the E. A. Packer, upon her port side, at about 4 o'clock in the afternoon of October 25, 1880, off pier 1 or 2, in the East river. The Atlanta had been lying at Roberts' stores, three piers above the Wall-street ferry on the Brooklyn side. She was taken in tow by the steam-tug Wolverton, on a bawser of about 20 fathoms, and was bound up the North river. The tide was about half ebb, and strong. The Wolverton, after hauling the Atlanta away from the dock at Roberts' stores, and getting straightened down the East river, was put upon a course heading down and somewhat across the East rIver, towards a point a little below Communipaw. on the Jersey side, and so as-to clear pier I, according to the testimony of Schultz, her pilot, by about 600 feet, and the battery by about '700 feet. Schultz further testifies that this course was kept unchanged until he heard two whistles from the Packer, when he put his helm hard a-port, and changed his course some four or five points, heading the New York shore. The Packer was also headed somewhat towards the same shore. The Wolverton crossed the bows of the Packer, clearing her by some 12 or 15 feet; but the Atlanta, which was about 100 feet astern, was struck just forward of amid-ships on her port side by the tow of the Packer, and speedily sank. Upon a libel filed in the district court of the Eastern district of Pennsylvania against the Wolverton by the master of the Packer's tow, to recover her damages arising out of this collision, it was contended, on the part of the Wolverton, that the two tugs approached each other port to port; that is to say, that the Packer was outside, and further off from the New York shore than the Wolverlon, and that the two were upon courses which, if kept, would have cleared each other by the Packer's going astern of the Wolverton. The libel in that case was dismissed on the ground, as I understand, that this theory of approach was not disproved. The Wolverton, 13 FED. REP. 44. By the undeniable weight of evidence in this case that theory is untenable, and is proved to be untrue. Of all the witnesses on both sides, Capt. Schultz alone maintains it. It is clearly inconsistent with the situation as indubitably established by other proof, and is substantially abandoned by the libelants' counsel. For the claimants, it is contended that the two tugs, at the time
THE E. !. PACKER.
when they were first seen to each other and when the first signal of two whistles was given by the Packer, were approaching each other starboard to starboard; that is, that the Packer was heading up the East river in the eddy off the barge office, and then being within 200 to 400 feet of the New York shore, while. the Wolverton was much further out in the river, headed somewhat quartering across the river, but still downwards and outside of the Packer. The libelants' coun. sel, though not denying that the weight of evidence shows that the Packer had the Wolverton on her own starboard bow, still contends that the Wolverton had the Packer on her port bow, and that the Wolverton had, therefore, the right of way, and that the Packer was bound to keep out of the way. The testimony on this point is more than usually embarrassing; not merely from the contradiction between different witnesses, but from the inconsistencies, contradictions, and corrections by several of the most important witnesses on each side, in their own testimony. It would not be profitable to point these out in detail; both counsel have sufficiently commented upon them. Almost any theory of the case can be maintained by taking detached portions of the testimony. I shall state only some of the points which I think best established. 1. Both the tugs were navigating in violation of the statutes of this state in passing so near to the Battery; but as they were visible to each other in ample season to avoid the collision, and as there was plenty of room for them to avoid each other where they were, the violation of the statute is not deemed a proximate cause of the accident, and is therefore regarded as immaterial. The Maryland, 19 FED. REP. 551, 556; The Fanita, 8 Ben. 11. 2. The collision took place between piers 1 and 2, and probably not over 300 feet off from the latter. 3. The Packer, with a heavy tow on her port side, had come down the North river, and rounded within 300 or 400 feet of the Battery, and probably less than that distance, according to the prevailing custom of boatmen, in order to avail herself of the eddy there; intending to pass through this eddy, and to keep close in by the piers beyond. She passed the barge office, probably within 400 feet of it, nnder a starboard wheel, so as to keep along by the piers, and so as to draw nearer to the longer piers beyond. She was moving slowly, at the rate of not more than a couple of miles per hour by land; while the Wolverton, with a strong ebb-tide, was moving by land at about the rate of eight miles per hour. The two tugs were seen by each other, according to the testimony of the pilots of each, when about 400 or 500 yards apart. Before the collision the Packer's engines were reversed; and, at the time of the collision, sbe was not probably making any headway. The distance of 400 or 500 yards between the two, when first seen, would be passed over in about a minute and a half. During that time the Packer, considering her slow motion and the backing of her engines, during the latter part of this inter-
val, could scarcely have made more than about 300 feet progress; and this agrees with her evidence as to the place from which she first saw the Wolverton, viz., off the barge office. The Wolverton did not back at all, but kept on at full speed; and she must have gone, during the same time, from 900 to 1,200 feet. 4. In reaching the point of collision from the place where she first saw the Wolverton, it is clear that the Packer could not have much shortened her distance from the New York shore; both because she could not have gone much over 300 feet altogether during the interval, and because, in the edge of the slack water, where she then was, the slight ebb-tide against her operated to lessen the effect of her starboard wheel. The libelants' counsel contends, even, that through this effect of the ebb·tide she was actually headed outwards and away from the shore. This does not accord with the evidence, and does not seem to me probable; several of the libelants' own witnesses testilied to the Packer's heading in somewhat towards the New York shore. At most, however, the Packer, in passing over SOIDe 300 feet, could have neared the New York shore but little, although, in approaching 'pier 2, she would come much nearer to it than to pier 1, as pier 2 projects about 75 or 100 feet further out into the water. 5. On the other hand, it is certain, from the testimony of the witnesses on both sides, that the Wolverton, when the Packer was first seen, about 400 or 500 yards distant, must have been far out in the East river, at least one-third of the distance to the Brooklyn shore, and in the full sweep of the ebb-tide. That distance back from the place of collision would place her there. 6. The Wolverton's course, as given by her pilot and wheelsman, would carry her outside of the Packer's line of approach, making them starboard to starboard when first seen. Considering the gross error of the pilot, Schultz, in testifying that the Packer, when first seen, was further out in the river than the Wolverton, that the tugs approached port to port, and that the Packer seemed to have come from the vicinity of Bedloe's island, and not around the Battery, I attach little weight to his evidence on these disputed points. It is not impossible that in his testimony he has confounded the situation of the Packer with that of another tug outside of her; that it was not the Packer which he saw 400 or 500 yards distant, but the other tug more in the direction of Bedloe's island; and that he did not see Packer till afterwards, when she was much nearer to him. But there is no reason to discredit his testimony as to the course which he took and kept up to the time of his "rank sheer," after the Packer's whistle::;_ That course, he says, was headed for "a little below Communipaw," after straightening down the river from Roberts' stores. From that point, after straightening down the river, the course testified to so as to "clear the Battery by some 700 feet" would have brought the Packer upon the Wolverton's starboard bow, unless the Packer were more than 500 feet off from the barge office, which was not the case, as
E. A. PACKER.
the place of collision proves. The Wolverton reached the place of collision only after a sheer of four to five points. She passed the Packer's tow only about 20 feet off, and I regard it as in the highest degree improbable, therefore, when the Packer was first seen, or ought to have been seen, i. e., before the Wolverton ported, that the Packer was to any appreciable extent on the Wolverton's port bow. She must have been either on the Wolverton's starboard bow or nearly ahead, as several of the witnesses testify. Schultz's testimony, that the Packer was at no time on his starboard bow, cannot be true. If he ported to go to the right of the other tug above referred to before seeing the Packer, that would explain some of his testimony, though it would introduce other contradictions. 7. Much of the contradiction in the testimony may be explained by the different times at which the observations of the witnesses may have been made. There is no question that after the Wolverton made her sheer towards the New York shore, she had the Packer upon her own port bow. Several of the witnesses who testified, including the wheelsman of the Wolverton and of the Atlanta, did not see the Packer until after this sheer was made. Their evidence on this point is therefore irrelevant. I do not mean to say that all of the evidence on the part of the libelants can be harmonized in this way; plainly it cannot be. 8. The cause of the collision, in my judgment, was the determination of Capt. Schultz, of the Wolverton, to run into the eddy ahead of the Packer, and between her and the New York shore, instead of keeping his former course and passing outside of and astern of the Packer,as that course would have carried him, had the Packer been allowed to keep on under her starboard wheel. '1'he testimony of the libelants' witnesses, as to having the Packer two or three points on their port bow, is, I think, founded upon the picture in their minds of the situation after it became noticeable and dangerous, through the sheer given by the Wolverton in order to get into the eddy across the Packer's bows. 9. Assuming that the Wolverton had the Packer either directly ahead, or even a little on her own port bow, before she portf'd her wheel, I am of opinion that, under the peculiar circumstances of navigation around the Battery, the pilot of the Wolverton had no right to attempt to go inside the Packer as he did, or to change her course to starboard; and that the Packer, being in the slack water when first seen, and near to the shore, far inside of the Wolverton, had a right to retain that position as respects the Wolverton, and properly kept to port under a starboard wheel, with a signal of two whistles; and that her subseqnent conduct was without fault. The Wolverton, in crossing the river and attempting to run across the tide into the eddy between the Packer and the New York shore, would necessarily cause her tow, astern on a hawser, to swing round outwards with the tide, and present a longer front to boats coming in the opposite direction. Such a maneuver would evidently be very hazardouB to her tow; ren-
dering it difficult, if not impossible, for the Packer to escape her.
The Packer might, it is true, on first seeing the Wolverton, have gone right out from the eddy into the East river tide, and thus have got round the Atlanta; but the tide, in that case, would have swept her round and far astern of her course. The custom of navigation about the Battery has determined against any such unnecessary and unreasonable navigation as that, on the part of a tug which is already in the eddy, going eastward near the shore. '1.'he evidence shows clearly, in my judgment, that the prevailing custom in navigating around the Battery on the ebb· tide, where a tug and tow are going eastward in the slack water near the barge office, and another tug, with a tow on a hawser, is coming down the East river and bound up the North i'iver, but much further out in the stream, requires the latter to keep off from the former, and not to attempt to run between the former and the shore, in order to get into the eddy, but to go outside and astern of the other tug. The libelants' witnesses do say that it is customary for tugs going either way to hug the shore; but none of them assert that, in the situation of the two tugs, as above described, and as I have found it, the Wolverton could properly endeavor to run in near shore as she did; while several of them, and all of the respondents' witnesses, justify the Packer in her course under the situation described. This usage is founded upon the manifest con· siderations of prudence and convenience above stated. This usage must have been known to the pilot of the Wolverton. The statute did not entitle him to run towards the shore inside of the Packer as he did, but forbade it; and the settled usage, as well as the most obvious prudence, also forbade it. The pilot of the Packer, being already very near the shore when the Wolverton was sighted, had a right to rely upon the Wolverton's observing this usage, under the pe· culiarities of navigation around the Battery. Being near the shore, it was his duty to keep there, and to navigate precisely as he did; giving, as he did give, the appropriate signals of two whistles. The ordinary rules of navigation do not apply to such a case; it falls within statute rule 24, and the exceptions to the inspectors' rules, (page 38,) which for good reason permit going to the left, and require the other vessel to navigate accordingly. The circumf"tances here did furnish good reason for going to the left, and justified the Packer's course. The pilot of the Wolverton knew it, or ought to have known it; and he was bound to accept, without hesitation, the first signal of two whistles given by the Packer in time, and to pass to the left, which the result shows he could easily have done. In fact, the testimony of Schultz himself, and the ground upon which he justifies his conduct, serve to confirm the view above taken. He does not claim that he would be justified in running between the Packer and the shore if the Packer were already near the sbore, in the eddy, and heading towards the piers; and that is the situation as I find it. His defense is upon the ground that the Packer was, in reality, further out in the stream than the Wolverton, and that the two were approaching port
THE SAM ROTAN.
to pol't; and that is the claim in the libel; a wholly different situation, which, as I find, the evidence in this case disproves. 10. Nor can I doubt that had the Wolverton merely kept her own course without change the collision would have been avoided. The Atlanta was struck after she had ported her helm and passed some distance on that course. This alone, I think, shows that had the Wol· verton and Atlanta kept their previous courses, and allowed the Packer to keep on to port, they would have gone clear to the left. The Packer, in giving two whistles and keeping to the left, ha,d the right to assume that the Wolverton would at least keep her course, and not sheer to the right; but by the Wolverton's porting the Packer was compelled to stop. and the collision was thus brought about. Though the Packer was navigating where she had not by statute any right to be, still this, as I have said, in no way contributed to the collision. The positions of both tugs were perfectly well known to each other in ample season to avoid any collision. The Packer, being near the shore. was navigated according to the prevailing usage, and without any fault that I can perceive. Being near the shore, usage and com· mon prudence required her to keep there, as respects the Wolverton, which was far out in the stream; while the latter was bound by the same usage and prudence to pass outside. without reference to her particular heading in crossing and coming down the river. The col. lision was, in my judgment, solely the fault of the Wolverton, in per· sisting in an unauthorized and dangerous attempt, which the Packer could not have anticipated, to run into the eddy between the Packer and the shore. When this was seen to be pertinaciously adhered to on the Wolverton's part, the Packer gave way and endeavored to avoid the collision; but without avail. As I cannot find any fault on her part, the libel must be dismissed. with costs.
THE SUI: ROTAN.
(District Court, S. D. New York. April 21,1884.)
1. COLLISION-EAST HIVER-TUG AND Tow. A tug, with a tow on a hawser, in the East river, is bound to keep out of the way of a schooner close-hauled. 2. SAM1i;-CASE STATED. The schooner C. was sailing close-hauled up the East river, below Corlear's Hook, about 200 feet off the New York shore, heading to Grand street, Will· iamsburgh; and the steam-tug R., having the schooner K. in tow, on a hawser 240 feet long, came down the river from above, and passed betwren the C. and the New York shore, clearing the C. hy about 50 or 75 feet, but the K. and C. came into colJiRion. Held, that the tug was in fault for needlessly attemptin£t to pass between the schooner C. and the shore, there being no obstructions toward the middle of the river, where she might have gone, and where the statutes required her to keep.
In Admiralty. Collision. Lester W. Clark, for libelant. Goodrich, Deady et Platt, for the Rotan.
BRowN,J. On the tenth day of December, 1881, the libelant's schooner CommercEl was sunk through a collision with. the schooner Kirk, in tow of the Rotan, in the East river, about 200 feet off the point of the Corlear's Hook. The Commerce was bound up th,e East river, the wind being nodh, and the tide the last of the flood, and slack. She was sailing close-hauled, on her port tack, heading about N. E. by E., and so as to make the Grand-street ferry on the Brooklyn shore, and her cou:rse remained unchanged. The Rotan, with the Kirk, a three-masted schooner, in tow upon a hawser about 24:0 feet long, was bound down the river. The Rotan, with her tow, had passed on the easterly side of the Tenth-street buoy, and came down about the middle of the river; and when she approached the Grand-street ferry had veered to the right, so as to pass Corlear's Hook close to the westerly shore, in accordance with the prevailing practice of boatmen. The captains of the Commerce and Rotan testify that they saw each other when from a quarter to half a mile distant. On the part of the Rotan it is claimed that she could not properly keep to the leeward of the Commerce, but rightly passed to the extreme righthand side of the river close to the Hook; that the Rotan cleared the Commerce at least 100 feet in passing her; and that the Kirk, which was a little nearer the shore, would also have easily gone clear, had not the Commerce, as claimants' witnesses allege, made a strong sheer to port and run directly into the Kirk neady at right angles; which, as they allege, was the sole cause of the collision. The libelant denies any such sheer, and alleges that his wheel was put to port so as to go to starboard, and that the Commerce did fall off about half a point, and struck the Kirk a glancing blow on the port side of the Commerce. The captain of the Commerce was at the wheel, and three other men were forward; all of whom were occupied, so that there was no proper lookout. One of the three was killed by the collision; the Commerce sank almost immediately, and her captain was rescued from the masthead. The case has been tried mainly upon the question whether there was any such luff by the Commerce as the claimants' witnesses teStify to. But, in my judgment, that point does not wholly dispose of the liabilities of the respective parties. The defendants have much the greater number of witnesses from the Rotan and the Kirk, who testify to such luffing; the libelant has but two witnesses to contradict it. Notwithstanding the greater number of witnesses who testify to such a luff by general statements, I am not satisfied of t.he correctness of these witnesses in this particular. (1) It is in the highest degree improbable. The luff alleged is a luff of about four points. The Commerce, without doubt, was previously heading somewhat inshore, so as to pass the point of the hook and clear it by about 200 feet. A luff of four points would have carried her directly inshore, and would have been without any conceivable reason. (2) The Commerce was already sailing close upon the wind, and such a luff as alleged would not only have put her in stays, but have
rendered. her, so near to the shore at that point, unmanageable. Some of the defendants' witnesses say that her sails were shaking when she struck the Kirk j others say that her sails were full. This disagreement is important; if her sails were fun, the wind was such that there could not possibly bave been such a luff as alleged. (3) The luff alleged could not have been accomplished within the space assigned for it. It is not claimed by the defendants that she began to luff until she was abreast of the Rotan. The Kirk was only 240 feet astern of the Rotan, and they were going at from six to eight knots an hour; the Commerce about two to three. The distance between them would, therefore, have been passed over in from 15 to 20 seconds. No luff of any importance could have been accomplished in that time, for the Commerce was heavily loaded and proceeding . slowly. (4) All the witnesses who testified to this luff testify that the collision was a little below the point of the hook; that is, after the Rotan and her tow had rounded the turn to the southward. While they were making this turn, the Commerce, although preserving her own course unchanged, would seem to be coming more quartering upon the Kirk; and the change in the Kirk's own position and heading, I have no doubt, has been largely ascribed, through a natural mistake, to a supposed luff of the Commerce, which would produce the same relative change had the Kirk kept a straight course. (5) The testimony of the captain of the Garlic, who, being astern of the Commerce, testified to seeing her starboard her wheel, may easily have arisen from the fact that the Commerce used a "traveling wheel," which was in fact turned to starboard, as the master testifies, in order to put the helm to port. (6) All these various considerations lead me to adhere to the usual rule which gives greater credit to the statements of those on board a vessel, as to her own movements and maneuvers, than to the testimony of those on other vessels in motion. The Kirk had her sails set; and it would seem that the captain of the Commerce did not observe the hawser of the Rotan, and supposed that the Kirk was coming down by herself and not in tow. But this does not affect the improbability of his making such a luff as to run into her. At the time the luff is alleged to have been made, the Kirk was clearly nearer the shore than the Commerce. Rejecting, therefore, the theory of the Commerce's luffing as the cause of the collision, it seems clear to me, from the other testimony, that both were in fault. 1. The Rotan was bound by statute to keep as near as may be to the middle of the river. She did so, in this case, until she neared Dorlear's Hook, when she drew rapidly over to the northerly shore in order to get the benefit of the slack water there; and, in doing so, she crossed the course of the Commerce, as the captain of the latter rightly states. It is possible that the Commerce was not observed by the captain of the Rotan until he had already got 80 far towards the New
York shore that the Commerce was no longer on his starboard bow, as she must have been previously. Whether seen or not, the Commerce might have been seen; and she was navigating according to her legal right. The Rotan, in violating the statute which required her to keep near the middle of the riv!=lr,-where there were in fact no obstructions,-and in hugging the New York shore at Corlear's Hook and attempting to pass inside of the Commerce in a space not over a couple of hundred feet wide, necessarily did so at her own risk of being held responsible in case of accident. Had there been plenty of room to pass inside safely, and had the accident been caused solely by an unjustifiable change of course by the Commerce, the Rotan would not have been held liable for this violation of the statute. The. Maryland, 19 FED. REP. 551, 556. But I am not satisfied that there was such abundant space, or that the collision was brought about by such a luff as alleged. Nor is the fact that the Rotan herself passed clear, sufficient evidence that there was room for the Kirk, which was in tow on a hawser, to pass safely also. The Rotan passed the Commerce at a distance variously estimated at from 50 to 100 feet only; but the course of the Commerce was then beaded about a point and a half towards the shore; and, in my judgment, it was the keeping of her previous course, and not any luff, which brought her in contact with the Kirk before the latter got past. The nearness of the Commerce to the shore, and her course somewhat headed towards it, made the experiment of the Rotan, in passing inside of her, clearly hazardousand injustifiable. There was nothing in the way to prevent the Rotan's passing along the middle of the river, where the law required her to go; and the Rotan must therefore be held in fault. 2. The Commerce, on the other hand, cannot be acquitted of blame. She had no proper lookout, because the men forward were busily engaged in othel' work. The captain at the wheel could not see properly. He did observe, as he testifies, that the Rotan was crossing his bows to go inside of him. Had a proper lookout been kept, it would have been seen that the Kirk was in tow of the Rotan; and when the Rotan, with such a tow, was going inside under such it was the duty of the Commerce at once to port her wheel in order to avoid the evident danger of collision which the faulty maneuver of the Rotan involved. Had the wheel been ported in time, when this course 1)f the Rotan and her tow should and would have been seen by a proper lookout, I cannot doubt that the collision would have been avoided. The captain ported, but too late, because there was no lookout to obBerve the Kirk in time. The fault of the Rotan in going inside does not relieve the Commerce in this respect. The Maria lWartin, 12 Wall. 31; The Pegasus, 19 FED. Rl!lp. 46; The B & a, 18 FED. REl'. 543; The Vim, 12 FED. REP. 906. The libelant is entitled to a decree for half his damages, with COlltS. If the parties do not agree, a reference may be taken to compute the amount.
KING V. SHEPHERD.
and others v. SHEPHERD and others.
(Circuit Court, N. D. ]()1J)a, E. D. April Term, 1884.)
REMOVAL OF CAUSE TO FEDERAL COURT AFTER JUDGMENT GIVEN IN STATE COURT.
After judgment against defendant in a state court, plaintiff cannot have a removal of his cause to a federal court as against parties who lJave filed their petition of intervention.
F. O. Platt and Henderson, Hurd If Daniels, for plaintiffs.
Gibson cf: Dawson and Robinson, Powers cf: Lacy, for intervenors. SHIRAS, J. The plaintiffs, Henry W. King & Co., filed a petition in the name of the copartnership, in the circuit court of Bremer county, Iowa, against A. Shepherd, upon whom personal service of the original notice was duly made, returnable to the February term, 1884, of that court. The action was aided by a writ of attacbment against the property of the defendant Shepherd, which was levied upon certain goods and merchandise, and under which notices of garnisbment were served upon the Bremer County Bank, the Bank of Waverly, A. Kretshmeier, and A. Coddington. On the fourth day of February, 1884, Charle3 Shepherd, the Bank of Waverly, and A. Kretshmeier, by leave of the circuit court, filed their several petitions of intervention, wherein they set forth that by virtue of several chattel mortgages duly executed to them by the defendant A. Shepherd, a lien in their favor was created upon the goods seized under the attachment as sf'r:nrity for debts due them from the defendant A. Shepherd; that, all a-'I,inst their rights as mortgagees, the levy of the attachment was W l angful; and praying that the court make such order as may be necessary to protect their rights; that said property be discharged from the levy of the attachment, and be appropriated to the payment of the mortgage claims due to the intervenors; and that they recover costs. On the eighth day of February, 1884, the plaintiffs filed answers to the several petitions of intervention, denying the rights set up under the chattel mortgages. The defendant Shepherd failed to appear on the return-day of the notice, and default was entered against him on the eighth day of February, 1884, but no judgment was entered on the cause of action. On the same day, to-wit, February 8th, a petitIOn for the removal of the cause into the federal court was filed on behalf of plaintiffs, and on the first day of March the court granted the application, and ordered the removal of the entire canse, including the case against the defendant, the garnisbees, and the intervenors. The record having been duly filed in this court, the intervenors move at this term to remand the cause to the state court. In support of this motion, it is urged, in the first instance, that the questions at issue between the plaintiffs and the intervenors are v.20,no.6-22
Motion to Remand Cause.