that the contract was not assignable, sO as to defeat the ju.risdiotion of this court. The motion to remand is therefore overruled.
WINNEMANS and others v. EDGINGTON and others.
(Oircuit Oourt, N. D. Iowa, E. D. April Term, 1886.)
REMOVAL OF CAUSE-JURISDTCTION-SEPARABLE CONTROVERSy-REPLEVIN. W. S. & CO., citizens of Illinois, brought suit in the circuit court of Black
Hawk county, Iowa, against S., E., and K., to recover certain goods, or their value. which had been purchased by S. from them, and carried to Iowa. A judgment having been obtained against S. some time afterwards, an execution was issued and placed in the hands of E., the sheriff, one of the defendants, who proceeded to levy the same upon the goods thus purchased. About the same time, also, S. made a bill of sale of the same goods to the defendant K., who took possession of them, and continued in possession of them, the plaintiffs not having given the bond required by law, but choosing to await the result of the suit. The defendant K. was a citizen of the state of Illinois, and the defendants S. and E. were citizens of the state of Iowa. At the appearance term the defendants S" E., and K. united in a petition to remove the cause to the federal court, but no action was taken upon the petition by the state court. A transcript of the record having been filed in this court, the plaintiffs moved to have the cause remanded to the state court. Held. that the record does not show a separable controversy between the plaintiffs and the defendants to entitle the defendants to a removal, and that the cause must be remanded to the state court.
Where a petition for removal is granted by a state court, and the transcript is filed in the United States court. upon a motion to remand being made, an amendment of the petition will be allowed for the purpose of curing any defects therein. If the state court does not grant or refuses an order for the removal of the cause, no amendments to the petition will be allowed.
At Law. Motion to remand. Alford rt Gates, for plaintiff. J. Blackburn Jones and Platt rt I1off, for defendants. SHIMS, J. This action was commenced in the circuit court of Black Hawk county, under the provisions of the Code of Iowa regulating actions for the recovery of specific personal property. In the pet,ition is alleged that the defendant Shaw fraudulently induced the plaintiffs to sell him at Chicago a large quantity of goods, which he brought to Waterloo, Iowa, with the intent on his part not to pay for said goods; that upon getting said goods to Waterloo, in furtherhe procured and caused a judgment ance of bis fraudllient in favor of his father.in·law to be entered in Montgomery county, Iowa, the same being a fraud; that an execution was issued thereon, and placed in the hands of the defendant Edgington, who was sheriff of Black Hawk county, who, by direction of the plaintiff in execution, levied said writ upon the goods fraudulently procured from plaintiffs by said Shaw; that said Shaw also, in furtherance of his fraudulent intent, eXQcuted a bill of sale to H. W. King upon said goods, and
that said King took possession thereof; and plaintiffs aver that the possession of said goods is wrongfully withheld from them, and prays judgment for the return of the property, or for its value, and damages. Plaintiffs did not file the bond required by section 3329 01 the Code of Iowa, and consequently the goods were left in possession of the defendants awaiting the final determination of the suit. At the appearance term in said action the defendants united in a petition for the removal of this cause into the federal court, averring therein that plaintiffs are and were at the commencement of the action, citizens of the state of Illinois; that H. W. King was and is a citizen of Illinois, and Shaw and Edgington are and were citizens of the state of Iowa; that said action sounds in replevin for tbe recovery of specific personal property, alleged to be by the petitioners fraudulently and wrongfully detained from said plaintiff, etc. It does not appear that any action was taken upon the petition for removal by the state court. A transcript of the record having been filed in this court, the plaintiff moves for an order remanding the saille to the state court. It appears from the averments of the petition for removal that the value of the property in controversy exceeds $500, and that the defendant King was and is a citizen of the state of Illinois, as are also the plaintiffs. The jurisdiction of this court depends, therefore, upon the question whether the record shows a separable controversy between plaintiffs and the defendants Shaw and Edgington in which the defendant King has no legal interest. According to the averments of the petition for removal the action "sounds in .replevin for the recovery of specific personal property, alleged to be by your peti. tioners (Shaw, Edgington, and King) fraudulently and wrongfully detained from said plaintiffs. The petition in replevin avers that "said sheriff (Edgington) and said King are now in possession of said goods and property of plaintiffs." According to the provisions of the Code of Iowa, the plaintiffs, if successful in the case, are entitled to a judg. ment for the return of the property, or for its value, and under the averments of the petition plaintiffs' judgment in either form would be against King jointly with Edgington. The record upon its face shows that plaintiffs have sued the defendants jointly, and it does not appear that there is involved a separable controversy in favor of a cit· izen of Iowa, which would entitle him to a removal. The ultimate question to be determined is whether plaintiffs have lost the title to the goods in controversy, or whether the title and consequent right of possession still remains in them. In this qnestion the defendants are all interested adversely to plaintiffs, and although in the further progress of the ca.se questions may arise touching the rights of the defendants in which they may not be alike interested, yet, upon the face of the record, it does not appear that the cause presents a separable controversy between citizens of different states. The plaintiffs have sued the defendants jointly, and the case falls
within the rule laid down in Railroad 00. v. Ide, 114: U. S. 62; S. C. 5 Sup. Ct. Rep. 735; Pirie v. Tvedt, 115 U. S. 41; S. C. 5 Sup. Ct. Rep. 1034, 1161; Sloane v. Andersen, 6 Sup. Ct. Rep. 730. Counsel for defendants ask leave to file an amendment to the petition for removal for the purpose of averring that there is a controversy between Shaw and Edgington and plaintiffs, who are citizens of different states. Should leave to file such amendment be granted? If, upon the filing of a petition for removal, the state court grants the prayerof the petition, and the transcript is filed in the United States court; aud, upon a motion to remand being made, some defect in the averments of the petition are disoovered,-no good reason is perceived why an amendment should not be allowed in order that the averments in the petition may be mane to show the very truth of the case. Un. der suoh oircumstances, the effect of the amendment is to show that the order of the state court was proper, according to the facts. If, however, the state court did not grant or refused an order for the re. moval of the cause, then a different rule should prevail. The case having been originally brought in the state court, its jurisdiotion has attached, and it oannot be oompelled, nor in fact is it justified, in parting with jurisdiction, unless the record presented to it shows that the case is properly removable under the law. The right of removal is purely statutory. The state court is in duty bound to retain jurisdiction, unless the party seeking a removal shows upon the record in that oourt a legal right of removal. If, then, a party seeking a removal does not upon the record make a showing sufficient to terminate the jurisdiction of the state court, and for that reason the state court does not yield up its jurisdiction, oan it be permitted to the petitioner to file a transcript in the United States court, and then, in the latter court, file amendments showing that he had a right of removal? The state court is not required to take notice of papers filed or procourts. ceedings had in the United As already said, the state oourt must retain jurisdiction, and proceed with the cause, until, upon its record, it is made to appear that the case is one removable to the United States court. Its jurisdiotion cannot be affeoted by papers filed in the United States oourts. If a party having in faot the right of removal wishes to exercise the right, be must comply with the statutory requirements. In other words, he must file in the state court a suffioient showing and proper bond. If the showing is incomplete and insufficient, the jurisdiction of the state court continues. If the party by amendment can perfect the showing, be must do so in the state court. He cannot, by filing a transcript in this court, confer the right upon the federal tribunal of terminating the jurisdiction of the state court by allowing an amendment to be filed in this court. Stone v. South Oarolina, 6 Sup. Ct. Rep. 799. The motion for leave to file an amendment is therefore refused, and the motion to remand to the state court is granted, the defendants to pay the costs of this court.
EELLS V. JOHANN.
Trustee, etc., v.
(OVrcuit Court, E. D. Missouri. April 23, 1886.)
RAILROADS - MORTGAGES PROPERTY. ENFORCEMENT OF JUDGMENTS AGAINST MORTGAGED
Where a railroad company whose property is mortgaged incurs obligations in the course of its operations. and judgment is recovered against it in a state court. that judgment may be enforced before forfeiture or foreclosure or the appointment of a receiver. by levyingnpon and selling a portion of the mortgaged property, and a federal court will not restrain its enforcement at the instance of the mortgage creditor.
In Equity. Bill for injunction. William L. Anderson, for complainant. TREAT, J., (orally.) In this case a bill has been filed on which an application for a provisional injunction is desired. It is au application without notice to the respondent, whereby, prior to a date to be named for the hearing of such a motion, the application should be granted intermediately. The bill discloses thaton the seventh of May, 1881, judgment was rendered in the state circuit COUl·t of St. Charles county, Missouri, against the railway corporation named, in the enforcement of which judgment levy has been made by the sheriff of said St. Charles county upon certain portions of the property of said railway corporation. The trustee of the bondholders asks this court to enjoin the sheriff from proceeding under the judgment and execu- . tion in his hands because the property named, which has been seized by said sheriff, is included within the terms of the prior mortgage. (1) Is this a case where the conrt should grant an injunction to restrain a state court or its officers? (2) If so, is there- anything on the face of the bill requiring the present interference of this court? (3) A larger question underlies this proceeding. A "going concern," to-wit, a railroad, in the course of its operations, though under mortgage, incurs obligations judicially determined to exist. When an attempt is made to enforce said obligations under the ordinary forms of law, shall the judgment creditor not have the right to enforce the same notwithstanding there is a prior outstanding mortgage which covers the property levied upon by the sheriff? So far as can be determined by the bill, the corporation was liable for the judgment had, and the property of the corporation was subject thereto. Is it possible that a judgment creditor who wishes to enforce his judgment against the corporate property shall be restrained from so doing until, without the intermediate appointment of a receiver, the mortgagee forecloses? Of course, a sale by the sheriff under the judgment of the state court will be subject to prior rights; but there il;J no reason why he should not proceed to llell. It cannot
by Benj .F. Rex, Esq., of the St. Louis bar.