SYLVAN GROVE.l THE DR. J. P. WITBEOK. TaE SYLVAN GROVE and another·
. (Di8triet Oourt, E. D. New York. July 16, 1886.)
Libelant's small boat, which was being towed astern oftha tugW., was run . down by the steamer S., which wall on a course overtaking tIle tug.. Libelant's ar.m was thereby broken, and liis boat damaged, for which injuries he brought suit against both the stl)am-boat and the that the steamer, · being the overtaking vessel, was bound to have kept out of the way, and was in consequence solely liable fotthecollision. 8. SAME..:..FALBE TEBTIMONy-ALLOWA:NCE FOR INJURY TO PBopE1tTy-FOR IN.JUR;YTQPERSON.. 1.COM,I8ION-StEAM-BoAT AND SMALL BOAT AsTERN OF TUG-OVERTAKING VESSEL-LIABILITY FOR PERSONAL INJURY.
Libelant swore falsely that his boat was wholly destroyed: Held, that nothing should be allowed for the injury to property. Held;! alMo, ·that he should recover $500 for the breaking of his arm.
. . . . ....
In Admiralty. . .. Thomas D. Cottman and Biddle it Wm'd, for libelant. A. P. it W. Man, for the Sylvan Grove. Benedict, Taft et Eenedict, for'the Dr. J.P. Witbeck. BENEDIOT,J.. It is plain enough that,. the libelant cannot recover against the Dr. J. P. Witbeck, at whose stern he was towing in his boat. It is equally plain that he can recover against the Sylvan ,Grove. Th'eSylvan Grove was overtaking the Witbeck, and the Witbeck, with the libelant's hoat ·astern. was in plain sight. The duty of the Sylvan Grove was to avoid collision with the libelant's boat. If, as she contends, there was a change of course on the part of the Wit. beck, which brought her on a course crossing the course·of the Sylvan Grove, then it was the duty of the Sylvan Grove. to stop, on seeing such change, and, by porting her wheel, avoid running over the libelant in hIS boati·· If she wRs:ataproper distance from the Witbeck, there was no difficulty'in doing this. If, however, as is more probable, the Sylvan Grove approached so near to the Witbeck, holding her course, 'that a. shift of the Witbeck's wheel, made to allow the Sylvltn Grove to pass ber to port, threw the Witbeck's stern a little off shore, and thereby pulled the libelant a little off shore, and under the paddleWheel of .the Grove, then the Hylvan Grove .witS in fault forapproaobing:sonear theWitbeck. Tbe libel must therefore be dismissed as to the Witbeck, with costs, and the libelant must recover his damages of the Sy;lvan ,Bie; badi one of his arms broken, and he swore falsely that his boat was wholly destroyed. I give him noth. ing for the injurJ··to his·pr6perty.,' ,Forbis brokenarmiI give him $500. Let a decree be entered for the libelant against the Sylvan Grove for $500, and costs.
Reported by R. D. & Wyllys Benedict, Esqs., oithe New York bar.
CHICAGO, I. &: N. 1'. R. CO. V. MLNNESOTA &: N. W. R. CO.
I. & N. P. R.
CO· .". MINNESOTA
& N. W. R.
(Oircuit Oourt, N. D. 10tlJa, E. D. November Term, 1886.)
REMOVAL. OF CAUSE-CITIZENSHIP-FILING OF A1l.TICLES BY FOREIGN CORPORATION.
The tiling by a foreign corporation of its articles of incorporation with the sebretary of state of Iowa. as tequired by 18 Iowa Gen. Assem. e. 128, does not alter its status as a foreign corporation; and. in an action brought against such, a corporationby an Iowa corporation, the defendant may have the cause removed- from a state court to a United States circuit court.
2. SAME-CONSOLIDATION AFTER SUIT BROUGHT·
.Where a of a foreign with a domestic railroad bas not taken place till after suit brought as'ainst the foreign corporation by a domestic corporation, and the tiling of petition for removal. the consolIdation does not alter the foreign corporation's right to a removal of the cause. .
3. SAME-APPEAL TO STA'l'E SUPREME COURT.
An appeal tOR state supreme court, from an order allowing a tel;tlporary injunction, where the same is allowed upon the petition and an affidavit. bars , the right ofdefendant to remove the cause to a United States circuit court. IHe nO 01:ljection to the application of tb;eforegoing rule that petition for removal was filed promptly on the opemng day of the term, bemg the day on which' it could be presented to the court, since the statute provides that the party desiring to remove shall tile his petition before or at the term at which the case could first be tried.
OF FILING PETITION. '
La,u& Harrnqn, for complainant. Jibulce &- uJon, for defendant.
On plea in abatement.
SHmAs, J. On the seventh day of July, 1886, the complainant filed sbill in equity in the district court of Howard county, Iowa, averring that the defendant had wrongfully taken possession of complainant's located and partly completed road-bed, over certain described parts of sectionsoflandS'in Howard county; and thebill prayed that a writ of injunction Illight be issued restraining defendant from interfering with said road-bed and grade; and also asked judgment for the damages alleged to have .been Caused by such action on part of defendant. On the tenth dayof July, 1886, an original notice in said' cause was served upon the defendant,citing the defendant to appear in said cause at the coming November term of said court; and also notifying defendant that on the thirteenth day of July, 18S8,anapplication for a temporary writ of injunctionwould'be made before the Hon. L. O. HATCH, judge of said dlStrictcourt. of Howard county. On the day named the application for the'temVdrnry writ was heard before the judge, both parties appearing by fbeirbounsel,'and an order was made directing the issuance of the writ The writ was thereupon iSsued and served, and on the day of July the·defendant gave notice of an appeal from the 'ordef'granting the writ to thesuprerne court of Iowa,' ahd filed a 8uper8edeas ponp... Otl'the rl.hlth day of November, 1886, the defendant filed in the distriei 'Howard'cotinty a :petition and bond for the removal of the v.29F.no.9-22