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.
TUGMAN V. NATIONAL S. S. CO.
,The actionl;l originally commenced in the supreme court of this state in the year',1875. The defendant, beiJig entitled so to do, duly sented to the state court a petition and. bond as required by law to remove the cause to this court, notwithstanding which the state court proceeded with the cause, and, after a hearing on the merits, gave the plaintiff a judgtl)ent against the defendant for the sum of $4,324.13. This judgment the court of appeals of the state upheld. But, a writ of error having been issued in the supreme court of the United States, that court· reversed. the action of the state court, and held all the proceedinf.(s in the state court, subsequent to the filing of the petition and removal bond, to ,be void, upon the ground that the jurisdiction of the state court absolutely ceased, and the jurisdiction of this court immediately attached, ,on the: filing of the petition and bond. 1 Sup. Ct. Rep. 58. The supreme court· also ordered that the plaintiff in error recover against the defendant in error $108.34, for its costs in that court, and have execution therefor; and ordered that the cause be remanded to the supreme court of the state, with instructions to accept the bond tendered by the plaintiff in eliror for the removal of the cause, and proceed no further in the cause. A mandate to that effect was therefore issued to the supreme court, upon the receipt of which the supreme court accepted the bond ,and proceeded to reverse the judgment which had been entered by the supreme court in favor of the plaintiff, "with costs to the defendant to be taxed," and ordered that judgment be entered accordingly. 'rhereafter the said court, upon motion of the defendant, awarded the defendant, in addition to the taxable costs, an extra allowance of $500, and on November 8,1884, entered up its judgment in favor of the defendant, against plaintiff, for the taxable costs and extra allowance, amount· ing in all to the sum of $1,206.30. These costs not. having been paid, and the plaintiff, being insolvent,now seeking to proceed with the cause in this court, the defendant applies to have further proceedings in this court stayed until the plaintiff pay the costs for which judgment was entered against him by the supreme court of the state in November, 1884. I do not think it so clear as the defendant supposes that a distinction can be drawn between this case and the case of Pw.ro8e v. Penrose, decided by this court, and reported in 1 Fed. Rep. 479. The defendant contends for a distinction, because, as he asserts, in this case the statt> court, in awarding costs and an extra allowance, were acting under the mandate issued by the supreme court of the United States. But the difficulty is that the mandate contains no direction to the state court to award costs. On the contrary, the mandate directs the court to accept the removal bond, and "proceed no further in the cause." It may btJ that when a state court, within its jurisdiction, reverses its judgment upon the mandate of the supreme court of the United States, it may:, when reversing its judgment, in compliance with a direcLion of the supreme oourt, give costs to the plaintiff in error. But it does not follow that the state court can award costs to the plaintiff in error without 9 mandate to the effect, when, as held by the supreme court in this case, every order in the state court subsequent to the filing of the removal pe
tition and bond is coram Mil, judice. As it seems to me, at least mandate of the supreme court to that effect was necessary to enable the state court to give costs to the plaintiff in error in this case; and indeed such is the view taken by the defendant in argument, for the authority conferred by the mandate of the supreme court is greatly relied on. But the mandate says, "accept the bond, and proceed no further." In Clerke v. Harwood, 3 Dall. 342, relied on by the defendant, the supreme court itself allowed the costs in the state court.. That was not done by the supreme court in this case; McKnight v. Oraig's Adm'r, 6 Oranch, 183, is not an authority here, for here the supreme court did not direct the court below to enter judgment for the plaintiff inerror, but only to ' proceed no further in the'case.: The language in Riddle v.. Mandeville, 6 Oranch,. 86, where it is said, "the court below is always competent to award costs in an equity suit in that court," is not authority for holding here that the state court is competent to award costs in a suit n'otin: that court. But whatever may be the conclusion as to the effect of the action taken by the state court after the receipt of the mandate of the supreme court, there,is another ground upon whioh, as it seems tome, this action should be denied. The order here asked for is within the discretion of the court. Courts, in the exercise of a sound discretion and for the purpose of mitigating the effect of vexatious proceedings, costs incurred in former proceedings have not been paid, and are not collectible, will stay further proceedings until such costs be paid. B1.ltthe proceedings in this case cannot be held to have been vexatious in lioyaspect. As to the demand itself, the state court, supposing it to have jurisdiction, gave judgment for the plaintiff. And as to the continuing of proceedings in the state court after receipt of the removal papers, not only the supreme court of the state, but also the court of appeals. held that the plaintiff was right in continuing his proceedings there. In such a case, where, merely because of the inability of the plaintiff, it appears that a stay of proceedings will in fact prevent absolutely: and without right of appeal the en:' :forcement of a claim held by the courts of the state to be justly due, the court cannot, I think, in the exercise of a proper discretion, gra.nt a stay. The costs of the supreltle court of the United 'States, which the supreme court did award, are different, and these the plaintiff has o'ffered£ to pay. On such payment being made an order will be made denying the stay asked for by the
(Cz'rcuit Court. N.
Iowa, C. D. May 8,1887.)
FEDERAL CIRCUIT COURT-JURISDICTION-CROSs-BILL-FORECLOSURE.
Where a circuit COUl't of the United States has jurisdiction of a suit to foreclose a chattel mortgage, it may entertain a cross-bill in such suit, filed by a party who intervenes, and .claims to be the owner of a part of the property. although. such party, by reason of his citizenship, being the same as that of defelldant, could not have originated the suit.
Where a suit to foreclOse a chattel mortgage is properly cognizable in a court of eq uity, a party who claims to be the owner of a part Of the property mortglliged may intervene in theeuit, although he would have a remedy by action at law, and in such case the court will have jurisdiction of the prp.ceeding in his behalf as ancillary to the original suit. .
In such a case the party claiming the p'roperty need not have put his claim into judgment before filing his cross-bill, as he alreagy has such an interest in the property as will enable him to question the validity of the mortgage.
SAME-INTERVENTION-LEAVE OF COURT.
Where, in a suit in equity in a United States circuit court to foreclose a chatte.lmortgage, an assignee of the mortgagor for the benefit of his creditor.s files a cross-bill averring that the mortgage is a fraud on creditors, the court may entertain the proceeding, although he did not obtain leave of court to file his bill. Where· parties having claims against the file a cross-bill in a suit to foreclose a chattel mortgage, and in their bill fail to show that the r claims have been reduced to judgment. except the claim of one of them, ana set up an assignment for the benefit of the mortgagor's creditors, and aver that the mortgage is fraudulent as to creditors, a demurrer to the cross-bill will be sustained as to the parties who have not abtained a lien on the propertybyaction at law.
IIi Equity. Bill to foreclose mortgage. Demurrers to cross-bill. Martin & Wambaugh and Wright & FarreU, for complainant. W. J. Covil and Kamrar & Boyer, for defendants.
SHIRAS,J. ·The bill in this cause was filed for the purpose of foreclosing a mortgage alleged to have been executed by the firm of Barge & King to secure an indebtedness due to complainant, a corporation created under the laws of the state of New York. All of the defendants named in the bill were and are citizens of the state of Iowa, and the amount involved exceeded $2,500, so that the jurisdiction of this court of the cause presented by the bill is unquestioned. On the fifth day of February, 1887, the Thomas Harrow Company, a corporation created under the laws of the state of New York, filed its cross-bill, having previously been permitted to become a party to the suit, and in such crossbill it averred that certain portions of the property claimed to be subject to the lien of the chattel mortgage in favor of complainant was in· fact the property of said Thomas Harrow Company, having been placed in the possession of Barge & King under a written agreement, by thetertnl