HARDIN and others.
«(Jircuit Court. N. D. Iowa,
May 2, 1887.)
S., a citizen 6f Iowa. tlled·a petition in an Iowa court against H. & Bons, one of whom was a citizen of Iowa. and the sheriff,to enjoin foreclosure of a chattel IDortgage. The sale having been enjoi;ned. H. & Bons tIled a cross-petition for the foreclosure of the mortgage, I111l.king defendants the Iowa corporati.o.n t h.at ha.d executed the mortga.g.e, and an Indiana corporation, and an .. . Illinois 'company that had gamished the mortgagee. The Indiana,and Illi· nois ()ompanies removed the case to the. United States court. Held that, the real SUbject 'of litigationbein-gthe.right to foreolose the mortgage, no sepa-. ' rablecontroversyexisted, and, as.one of the complainants was a citizen of the same state as some of the defendants, the suit was not removable.
In Equity. On motion to remand. a. E. Albroke, for complainant. G. L. JohmDn and Bills &- Block, for intervenors. J. F. Duncombe, for defendants. SHIRAS, J. The complainant, W. T. Shaver, at the June term, 1886, of the circuit c.o.un of county ,filed ,a petition for an injunction against C. Hardin & Sons and W. C. Wilcox, for the purpose of restraining a sale· of personal, property covered by three mortgages, whieh had ". been' placed in 'the hands of Wilcox as sheriff, for the purpose of having the property sold on behalf of C. Hardin & Sons. Of these parties W. T. Shaver, the complainant, and J. D. K. Smith, one oithe firm of Hardin: & Sons, as' well as the sheriff, were citizens of Iowa. The sale oithe mortgagedp,roperty by the sheriff having been enjoined, the mortgagees, Hardin & Sons, filed across-bill praying a decree for the foreclosul'e of the mortgages, and to this bill the Shaver Wagon Company, bywbom the mortgages were executed, the Indianapolis Wheel Company, Kelly, Maus & Co., and othel'S were made defendants. 'i'he Indianapolis Wheel Company, the members of which were citizens of the state of Indiana, and Kelly, Maus & Co., who were citizens' of the of Illinois, filed petition for removal of the cause into the federal courtja.nd" the state court having granted the order of removal, the named'defendants have in this court filed cross-bills, attacking the validity of the several chattel mortgages held by C. Hardin & Sons. A motion to remand, filed by C. Hardin & Sons, now presents the question whether this court has jurisdiction of the cause. The real subject of litigation is the question of the right to foreclose the chattel mortgages held hy C. Hardin & Sons. Upon this issue the Il.ffirmative is upon C. Hardin & Sons, of which firm one member, J. D. K. Smith, was. when the suit was commenced and when the petition for !'emoval was filed, a citizen of the state of Iowa. Of the defendants, W. T. Shaver .and the mortgagees the Shaver Wagon Company, are and were, wherl"'the suit was brought, citizens of Iowa. As between these parties, it is clear that the cause was not removable, because one of the V. 80F. no. 11-51
complainants was and is a citizen of the same state with the defendants named. The other defendants were made parties they had garnished C; Hardin & Sons, and were questioning the validity of the mortgages as against credito,rs. The object and purpose Of the cross-petition filed by C. Hardin & Sons was, to establish the vaij,d,ity of the chattel mortgages, and their right to foreclose the same against all the defendof Co Hardin & Sons is one and inants. The cause of action in divisible, and the fact that'the defendants may have several and distinct defenses does not import into the case separable controversies. The case falls within the principle recognized in Fidelity Im.!eo. v.Hwntington, 117 U. S., 280, 6 Sup. Ct. Rep. 733, and, following therein announced, it must be held that this court has not jurisdiction, and the motion to remand must be sustained. LOVE, J., concurs.
NATIONAL S. S.CO.I
(Circuit Court, E. lJ. New York. March 24, 1887.)
Plaintiff having brought suit in a, state court, defendant offered a proper petition and bond for the removal of the cause to, theoourts of the United States. Notwithstanding this, the suit was prosecuted favor to the court of appeals of the state of New York, from lyhich,awritof error was taken to the United States supreme' court. This held that the state courts had no jurisdiction after the tlling:by defendant of the petition and bond for removal,gave costs in that court to tJ!.e defendant, and remanded the suit to the state court, with instructions to accept the bond, "and proceed no further in the suit. .. The mandate did not authorize the state court to award costs. Thereafter the state court awarded costs to defendant, which not being paid, this application was made by defendant to' stay proceedings in this court until the payment by plaintiff. Held that, while it seems that the state court, under these circumstances, had no authority to award costs, the application for a stay in the discretion of the court, and the proceedigs not havinl( been vexatIOUS in any way, and the highest court .of the state having held that plaintiff was right in continuing his proceedings there, this court would not, under such circumstances; grant a stay, and plaintiff might con· tinue his8,cti6n on payment to defendant oUhe costs awarded in the supreme court of the United States.
CAUSE-'-CONTINUED PROSECUTION IN STATE'COURT-REnRSAL BY UNITED STATES SUPREM:E COURT-ApP,LICATIQ:N: FOR STAY PENDING PAY' M:ENT OF COSTS. ,
In Admiralty. , James R. Carmichael, for libelant. ' John Ohetwood, for defendant.
BENEDICT, J. This is' an applicati9n by the defeJ;idltnt for a stay of iurther proce(ldings in this cause until. theplaintiff shall pay the defendAnt certain costs. These costs accrued upder the following circumstances:
] Reported by Edward G. Benedict, Esq., of
the New York bar.