LOCKHART 'D. MOREY.
LOCKHART V. MOREy. 1
((Jircuit (Jourt,E. D. Louisiana. March 14, 1887.)
REMOVAL OF CAUSES-PETITION FOR EXECUTORY PROCESS.
OPPQsitions tiled to orders for executory process. under the provisions of the Louisiana Code of Practice, do not constitute mere ancillary proceedings to a suit already tried and determined.
E. D. Wfl,iJe and E. D. Saunders, for plaintiff and motion. John D. R!Juse and William Grant, for defendant.
PARDEE, J. The quel:ltion presented by the motion in this case is whether a case is removable from the state court to the circuit court, where the suit is instituted in the state court on a petition for executory process on a title importing a confession of judgment, executory process has been ordered, and the debtor has filed an opposition, denying the plaintiff's right, and asking the revocation of the order; the requisite showing as to amount involved and citizenship being conceded. It is claimed that the order of seizure and sale constitutes a judgment between the parties, and that the proceedings thereafter on the opposition are merely auxiliary to such judgment. The case of Ralston v. Mortgage Co., 37 La. Ann. 193, is cited to support this contention. There is no question that the proceedings above recited constitute in the state court a suit of a civil nature, at law or in equity, which has not been but is to be tried and determined. Because a judgment is in controversy, is of itself no hinderance to the removal of a suit of a civil nature, at law or in equity. If a suit has progressed to trial and judgment, it is too late to remove it, because all removals should be before trial. If. after judgment rendered. a suit is brought to control as to the mode and manner of execution, or even to prevent execution, there is plausibility and authority for holding that such subsequent suit is ancillary to the main suit, and therefore not removable. But where there has been no trial, and the involve the whole merits, and the whole matter can be transferred, it is difficult to see that the question of removability should be affected by the fact that some order previously rendered in the case may have the dignity of a judgment. In this case, therefore, I am inclined to the opinion that the present case is removable, irrespective of the question as to whether the order of seizure and sale amounts to a judgment or not. At the same time I take it that the real force and ef1 Reported
On Motion to Remand.
by Joseph P. Hornor, Esq., ortlle New Orleans bar.
feet of the order for executory process is that only of an interlocutory order, and having few, if any, of the requisites of a In Levy v. Fitzpatrick, the supreme court of the United States, after a full examination of Louisiana decisions and the Louisiana Code of Practice, held that the order granting executory process cannot be regarded as a final judgment, nor as anything more than a judgment nisi. 15 Pet. 167. This court in Boatmen'8 Sav. Bamk v. Wagen8pack, 4 Woods, 130, 12 Fed. Rep. 66, said: "'l'he order of seizure and sale, unless there is opposition; i.s a final order. If there is opposition, itls a mere process introductol'yto a litigation. * * *" Again: "The order for executory process is in form a decree of judgment, but it is in sub!3tance only an order ea; parte." "These orders are issued in France by notaries, who are quasi judicial officers." And in Weaver v. Field, 4 Woods 152, 16 Fed. Rep. 22, speaking of the order for executory process: "In practice in this state (Louisiana] it is well understood to have so little of ·the force of the thing adJudged '.. that on very slight occasion the whole proceeding is turned into the via o1'dinmia. Praying for citation, praying for a personal jUdgment, taking testimony, and praying for a jUdgmEl;nt in answer to an injunction, or on a rule to dissolve, have each been held and change the proceeding into an ordinary suit. The order to avoid the of seizure and sale is rendered upon a title importing a ,confession of jUdgment, but it by no means has the force of a judgment by confession. In fact, prior to the constitution of 1868,nnder statutes of 1861 and 1862, in the major part of the state, this order could be granted by the clerks of the court." These decisions are in strict accord with the decisions of the supreme court of Louisiana: "The decree [executory process] is so far a judgment that an appeal will lie from it; but itls not a judgment in the true and legal sense of the term, and possesses none of its features. It issues without citation, decides no issue, adjudicates to the party obtaining it no right in addition to those .secured in his notarial act, and need assign no reasons." See Hen. Dig. 655, No.. 5· . As late as the case of MitcheU v. Logan, 34 La. Ann. 998, it was held ·as well settled that the order for executory process had :".but one element of a judgment, namely, the right of appeal, which can be taken either from the order .of the judge, or from his refusal to grant the process. " It would seem to be too late to now hold in Louisiana that an order for executory process has so much of the nature of a final judgment that .oppositions filed thereto, under the express provisions of the Code of Practice, constitute mere ancillary proceedings to a suit already tried and .determined. The motion to reniaud is denied.
· SAX' tl. CASPAR.
and others v.
(Oircuit Oourt, D. Oolorado. May 6, 1887.)
REMOVAL OF CAUSE-SEPARABLE CONTROVERSY.
The removal of a cause from a state to the federal court does not de}lend upon· the question of what issue remains to be tried, but must be determined by the nature of the cause of action presented in the complaint. If there be but one, involving many defendants, the fact that each makes a separate defensedoes not make separable controversies; nor does the default of one of them, or his disclaimer of title to the land in controversy, give a right of removal to the contesting defendant, who is a citizen of a state other than that of the plaintiffs.
SAllE-MOTION TO REMAND-I'RAOTICE.
The c()urt will not inquire, on a motion to remand a case to the state court, either as to the truth of the aUegatlOns in the pleadings, or tho sufficiency of the complaint or bill as such, or whether it states a good cause of action. These matters are for the decision of the court which finally tries the case.
Bill to Set Aside Decree, etc. O. B.LiddeU, for plaintiffs. J. A. Bentley, for defendants.
BREWER, J., (oraUy.) In case 2,086 there is a motion to remand which presents something (If an interesting question. The facts are these: There are three plaintiffs and three defendants. One of the defendants, who seeks the removal, is a citizen of the state of Wisconsin. The other defendants, and orie or two of the plaintiffs, are citizens of Colorado. This defendant seeks a removal on the ground of a separable controversy between himself and plaintiffs. One of the defendants, Catherine Caspar, executed some notes and a mortgage on real estate in this city to the plaintiffs. A. suit was instituted to foreclose that mortthat single defendant party defendant. Pending those gage, foreclosure proceedings, one (If the other defendants obtained a sheriff's deed on an execution sale for part of the mortgaged property, and thereafter conveyed this property thus purchased to the other defendant, the citizen of Wisconsin. Now, this complaint is filed, setting forth the fact of that foreclosure proceeding; that one defendant had obtained title pending those proceedings, and transferred it to the defendant in Wisconsin; alleging that that transfer was without consideration; and that the defendant in Wisconsin held the legal title in trust for the other two defendants, and praying a foreclosure as against all. It also alleges that the defendant, who first obtained the title, put upon the property a frame building of the value of $300, and seeks an injunction to prevent its removal. Service was made on all three of the defendants. The mortgagor and the party who took the title in the first instance have each declarfiled disclaimers and demurrers separately, in the one ing that they have no interest, and by the other that plaintiffs have 1:\0 cause of action. The Wisconsin defendant answers, alleging his title, and thatit wasia b.onafide purchase, and now insists that there is the one separable controversy between him and the plaintiffs. and that he is a