(Oircuit Oourt. B. D. Ge<>r!1ia, E. D. 'February 22,1887.)
RJlMOVAL OF CAUSEs-REMAND BY CONSENT.
Where a removable suit has been properly removed under the act of March 3, 1875. from a state court into this court, the consent of parties cannot authorize this court to remand the.. cause to the state court. Motion to remand.
(ByllabUs by tM Court.)
Action on Note. Removed from state court. Denmark & Adams, for plaintiff. Garrard & Meldrim, for defendant.
SPEER J. This-is a motion to remand a cause to the state court by consent parties.. From the record it appears that the commenced his action against the defendant in the state superIOr court, on, a promissory note for $1,110.07, payable to F .. Stubbs or bearer. It is alleged in the declaration that, after Its matunty, "indorsed, duly assigned, transferred, and delivered" the note to the' plaintiff, a non-resident. The 4efendant filed, with other pleas, a plea in the state court, alleging that the plaintiff is not, and never was, the true owner of thE) note suedon, and that it is necessary, for the protection of the defendant, that the title of the holder of note be inquired into. The plaintiff then had the'cause removed to this court, under the act of March 3,1875, alleging in his petition that,atthe time the action was commenced, he was,and still is, a citizen of the state of South Carolina, and the defendant a citizen of the state of Georgia. The transcript of the record from the state court was filed in the clerk's office of this court, June 25, 1888. An order in the following terms, and signed by counsel for both parties, is now presented to the court for its signature: "Upon motion and consent plaintiff and defendant, it is ordered by the court that said cause be. and the sarne is hereby remanded, to the state court." I do not think this the authority to make the order. When a cause is properly .removed to this jurisdiction, under the act of March 3, 1875, the jurisdiction of the, state court is finally determined.' It ceases to exist. Further proceedings by it would be coram non judice. New York Silk Manufg Co. v. Second Nat. Bank, 10 Fed. Rep. 204; Shaft v. Phamix Mut. Life Ins. Co., 67 N. Y. 544. The authorization to remove a cause from the federal to the state court is expressed as follows: "Where it shall be made to appear, to the satisfaction of said circuit court, at any time after such suit has been removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the. jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined. either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said court shall proceed no further therein, but shall dismiss or remand it to the court from which it was removed. as justice may require." Act March 3, 1875, § 5, (18 St. U. S. 470.) v .30F.no.9-41
The jurisdiction of the state court is extinguished by the removal of the cause, if it be properlyreriioved. The jurisdiction then is in this court precisely as if it haq Qounnenced here, and this court cannot give it Btatus anew in the state court, without express authority of law so to do, tWd there is no such ",arrant in the act of congress. This court woulq.,hiwe as muc.llrightJo trans(er to the statecoU:,rt any other case of which it had jnrisdiction by, consent of, parties. : The ponsent of parties cannot empower the court to do that which it has no jurisdiction todo, with ,relation to this or any other. application. The case may be discommenoed 'anew in the state court,but to remand it, is quite another proceeding. Had this case been brought to this court from an inferior judicature, or from a memberof the same general sysbe that an equivalent motion "by consent" could. be The state court,however, is entirely 'independent ofthis court, not presume to place aeause upon its roll, alId, ,as a cOUnsel ask it: even fQr: plaintiff to sustain the consent order by an admISSIOn qf ,record that of the note, to the plaintiff was made after,maturity! for th e purpOse of conferring j llrisdiction upon this but theY will not admit,'nor have they anyrelison to believe, that was improperly or collusively made, or inade without a val..; uable The Ildmission does not appear to strengthen the applicat\?p. ,A. bona fide conveX8;fJCe of property in controversy, for the express, of conferring jurisdiction, or the traIlsfer of a note for that is no ground for reIDtWding a removed cause. Hoyt v. Wright, 4 Fed. Rep. 168; .f.anning v. Lockett, 11 Fed. Rep. 814;, Lexingtonv, Butler, 14 Wall. 282; BushneU v. Kennedy, 9 Wall. 387; Green v. 0u-stard,:23 How. 484; Chickamiilg v. Carpenter, 106 U. S. 663, 1 Sup. Ct. Rep. 620., The transfer must be actual, and not merely colorable. Farmington v. PillBbury, 114 U. S. 138, 5 Sup. Ct. Rep. 807. The only legal groundsugg!Jsted by counsel for defendant which could is' the transfer ofthe note to the plainsustain thei'm,oti9n t6 tiff was without consideration, aI)d merely colorable, that he might acquire a standing in the court to enable him to prosecute in the interest of the resident payee. But to this the plaintiff's counsel will not agree. The motion t.o ren'landby consent is denied.
MAYNARD V. GREEN.
and others, Ex'rs, etc.
(Oircuit O()wt. 8.]). Ne1JJ YOrk. April 111, 1887.)
BILL-AcCOUXTING. A. brought a bill in equity against B.. alleging that A. and B. were partners; that an attempt was made to incorporate, but the incoI'Poration was not perfected, and tlie business continued to be carried on as a partnership; that certitlcatesof stock were issued for the purpose of distributing evidenceQf the ownership of the property among the parties interested; that A. pledged to B. certain of the certificates of stock for advances made byB.; that said advances were in reality advances on account of A/s share of the uted profits in Bo's hands, and that the pledges were void; and !Jrayed for a partnership accounting, and that the pledges be declared void. 'An amendment to the prayer of the bill was allowed, to enable the plaintiff to· redeem the stock, in case the court should find that the corporation was duly, organized. and that the pledges were valid. Held, that a supplemental bIll, averring that there was a corporation, and alleging facts relating to its management, such as were claimed to entitle plaintiff to have the fundB of the corporation, (Which were in B.'s. hands at his death,) divided between the stockholders, would not be allowed to be filed, although the facts alleged occurred subsequent to the filing of the bill, as it made a case in antagonism to the case made by the original bIll.
Prancia O. Barlow and Charles W. Wetmore, for plaintiff. Jamea O. (hrter and Prank E. Smith, for defendant.
SHIPMAN, J. This is a motion to amend the bill, and to file a supplemental bill. The facts in the case· are stated in the opinion of the court in Maynard v. Pilden, 28 Fed. Rep. 68&. The original bill was based upon the theory that the relations between Mr. Wetmore and Mr. Tilden were those of partners, but that, for the purpose of distributing evidence of the ownership of the property among the parties interested therein, certificates of stock were issued; that the loans and advanc.es of Mr. Tilden were advances made on account of Mr. Wetmore's ahare in the undistributed profits of the business; and that the pledges were void. The bill pra.yed that the pledges should be declared void, that the defendant should account in regard to the copartnership dealings, and should pay the plaintiff whatever might be found due upon a settlement of the account. The court found that the relations between Messrs. Wetmore and Tilden were those of the only actual stockholders of record in a corporation, and that valid and unredeemed pledges of its stock had been made by Mr. Wetmore to Mr. Tilden individually, and as trustee for the corporation. The plaintiff contended that if the iron mine was a corporation, yet that its funds could be divided in this suit between the plaintiff and Mr. Tilden, inasmuch as the latter had reduced nearly aU the assets of the corporation into money; held the money in his own name; the two were the only stockholders of record; there was merely a nominal board of directors; the corporation had ceased to do business, and had a bare legal existence. The plaintiff was permitted to amend his bill so as to ask that in the event that the court should find that the corporation was