D. R. CO.
RICHMOND & D. R. CO. v. FINDLEY and others. 1
(Czrcuit Court, N. D. G607'gia. June 14, 1887.)
REMOVAL OF CAUSES-SUBSTITUTED PARTy-RIGHTS Oil!.
Where a railroad ,comp:j.ny, by a contract of perpetuallease, acquired property of the lessor for which an action of ejectment was pending, h6ld. the lessees' right of removal was only such as existed in the lessor. . , Where at the time of the lease an action of ejectment was pending against certain of the property so transferred, and the lessee, instead of defending the action, sets up by bill in equity only such matters as could by the law of the forum have been pleaded to the action of ejectment, such suit does not constitute a distinct and independent controversy, though the formal parties to the record are different. And such cause cannot be removed into the federal court unless the original action might also have been removel!.
SAME-I:r-"DEPENDENT CONTROVERSy-FoRMAL PARTIES.
In Equity. Removal of cause. On motion to remand. August 27,1880, James A. Findley, as administrator of the estate of Elizabeth,' Findley, brought an action of ejectment in Hall superior court against James Weaver, tenant in possession, to recover a certain lot of land in Hall county. Weaver was in possession as an employe of the Atlanta & Charlotte Air Line Raihvay Company, a Georgia corporation. This company claimed title to said lot of land, upon which was located a part of its road-bed, and track, and certain houses for the use of its employes. The Atlanta & Charlotte Company, on the twenty-sixth of March,1881, executed a contract of perpetual lease of all its property, (including this lot of land sued for,) to the Richmond & Danville Railroad Company, a Virginia corporation. Neither company caused itself to be made a formal party defendant to the ejectment suit, as might have been done in Georgia. The Richmond & Danville Company, on August 25,1884, filed a bill in equity in Hall superior court against James A. Findley, as administrator, James A. Findley, individually, and the other heirs at law of Elizabeth Findley, praying an injunction against the further prosecution of the ejectment suit, and for relief. Upon this a temporary injunction issued. February 18, 1885, the Richmond & Danville Compap.y filed its petition for the removal of the equity cause to the United States circuit court for the Northern district of Georgia, on the ground of citizenship, under section 2 of the act of March 3, 1875, and the cause was accordingly removed. Upon the hearing in the circuit court, counsel for respondents moved for an order remanding the cause to the state court. Pope Barrow, Hoplcins & Glenn, and S. a. Dunlap, for complainants. John B. Estes, Claude E8ie8, and W. F. Findley, for respondents.
NEWMAN, J.. During the hearing of this case counsel for defendants suggested to the court that the case was improperly removed to this court,
lReported bv W. A. Wimbish, Esq., of the Atlanta 1:1$1'.
and moved to remand it to the state court. The motion was only briefly argued at that time, without production of authority on either side. The court reserved its decision on the question, and heard the case to a conclusion, reserving its decision on the entire case also. Since the hearing, counsel on both sides have furnished some authorities on the question of removal, and. I have examined the question and authorities with considerable cl,1re myself. , ':q1is:casewas removed tinder the second section of the act of March 3, 1875.' The supreme court of the United States in the case of Gibson y.Bruce, 108 U. S. 561, 2 Sup. Ct. Rep. 873, decided that a case could not be remo\'ed from a state court under the !tct of 1875, unless the requisite citizenship of the parties existed both when the suit was begun" and when the petiiion for removal was filed, In the case of Cable v. Elltis, 110 U. S.389, 4 Sup. Ct. Rep. 85, a suit in 'eq'Ui'ty, involving titles to: real estate, a,nd priority of lien, which had been long pending in the state court when Cable became interested in the property by grant from 0IlE! of the parti,es interested in the suit, and intervened in the case by leave of the state court at a time when the right of reinovalfrom the state to the federaf court had expired as to tIfe original 'parties, it was held that he was subject to the disabilities of the pat:ty:froIu whom he took title, and the time for removal had expired, and that his right of removal was barred by that fact. In thecase of Railroad 00. v. S. 358, 4Sup. Ct. Rep. 472, it was held that the,substituted party comes into a subject to all the disabilities of him whose pla<Je he takes, so far as concerns the right of removal ofthecausej and the eases of Gibson v. Bruce, and Cable v. Ellis, supra, cited with approval. The doctrine of these cases is admitted by counsel for complainant here, hut they say this is a new and distinct suit, and that the factthat theheirs at law of Elizabeth Findley are made parties to ,their bill, and that they ask special relief againstthem as such, makes it a different and' distihct case from the ejectment suit. All the rights that the Richmond & Danville Company had or could set up in tpis cOl1troversy, eitherat 18": or in equity, are such rights as they acquired fromtbe Atlanta & Charlotte Company. Before the agreement between these two companies, the administrator of the estate of Elizabeth Findley had commenced suit to recover this property. The Richmond & Danville, of Course, took lis pendem, and any estoppel or prescription it might claim against either the estate of Eliiabeth Findley, or het heirs at law, only ran to the ti,me of the ,commencement of the ejectsuit. The lti'chmond & Danville Company sets up no separate or distinct right or equity as to itself. Nothing whatever has transpired' between it and the estate or heirs ,at law of Elizabeth Findley; on the contrary, as, I Jiave stated, it tObkwith a suit pending to 'recover this land. What then were the rights of the Atlanta & Charlotte COmpany? It could have set up everything as a defense that is contained in the bill filed'bytlleRichmond & Danville Conipany, and it could haveset it up; I by an equitable plea to the action of ejectment,or it might .have filed its bill on the equitable side of the court, if it preferred. Elder v. Allison, 45 Ga. 14, 17. '
RICHMOND &: D.R.. CO; '11. FINDLEY.
It is stated in the bill' and answer that the estate of Elizabeth Findley owed no debts·. That being true, the suit ministrator was solely for the purpose of distributiop, and was·· maintained by him simply for the use and benefit of the heirs at law. Why then could not any grounds of deferise either of these companies had against the heirs at law have been made in an equitable defense to the action of ejectment, as it was their right bylaw to do? Although it appears that at. the time that the Atlanta & Charlotte transferred its property to the Richmond & Danville Company,it had not made itself party formally to the action of ejectPlent; it was the real defendant, knew of the action, and was bound thereby. Rodgers v. Bell, 53 Ga. 94. And it is clear that the very same matters set up by the Richmond & Danville in this bill, would have been set up in some fqrm by the Atlanta & Charlotte. The Atlanta & Charlotte, it is conceded, could not have removed this controversy in any shape to this court. The Richmond & Danville brought into a suit involving practically and really the same controversy made by this bill, after.it commenced; and took whatever rights it acquired as to·this property by the agreement of March, 18S1! subject to the disabilities of the Atlanta & CharlotteCompally. But it is stated by counsel for complainant that the case of Bondurant v. Watson, 103 U. S. 281 controls this case. I do not think so. That was a bill filed by Watson to protect himself against a judgment. The court say: "The controversy in the original case between WalterE. Bondurant and Albert Bondurant et al., had been ended by a final jUdgment. The case between Watson and Mrs. Bondurant had its origin in that judgment. but it was a new aildindependent suit between other parties and upon new issues. It was a suit in which the plaintiff sought to be protected against a judgment to which he was not a party, by which his property had been specifically con damned to be sold to satisfy a claim against others and not against him."
The complainant in that case, it will be observed, had distinot rightfl which he claimed independently of those claimed by any party to the original litigation. The original case had gone to judgment. He sought to be protected against the judgment on account of rights he had .that were in no way involved in the controversy between the parties to the origina:! suit. . Here the complainant acquires the control of property, to recover which a suit. is pending, and then instead of defending that suit, sets up by bill in equity the same matters he could have pleaded in thq. original case, and claims the right to remove the case to this court when it could not have been removed by the party from whom he acquired his rights; I do not think he can do so. If the effect of the agreement two companies is to unite the manof March 26,1881, between agement of the companies, it seems to me the argument against .would be stronger. Crump v. 115 U. S. 56, 5 Sup. Ot. Rep. 1154, and caseEi cited. Under the fifth section of the act of March 3, 1875, if the court believes the case to have been improperly removed, it should proceed no further, but should remand it to the state court.
Believing this case to have been improperly removed to this court, I must direct that it be remanded to the state court, and an order will be passed accordingly.
and another. 1
(Oirc'Uit Oo'Urt, E. D. New York.
REMOVAL 011' CAUSES-DECISION OF STATE COURT-RiVIEW BY CIRCUIT COURT.
Where, on application by a defendant in a suit in a state court to remove' the cause to the United States circuit court, the state court, being. of compe' tent jurisdiction, has decided that on the face of the record the defendant is not entitled to such removal, he. will not be permitted to contend' for a con· trary decision of the same point hi the circuit court, upon a motion by plaintiff to remand the cause.ll,s not being removable.
O. H. La Grange, for plaintiff. Seward, De COBta &- Guthrie. and Robt. H. Griffin, for defendants.
BENEDICT, J. This case Comes up before this court upon a motion to remand. The suit was originally commenced in the supreme court of the state of New York. Thereupon the defendants filed in the state court a petition for the removal of the cause to this court, upon the ground that the bill showed a separate controversy as to the defendant Alley, a citizen of the state of Massachusetts. This petition, with the necessary bond, when first presented to the state court, was accepted. Subsequently, upon further consideratioh of the bill, after hearing the parties; the state court determined to reject the removal petition and bond, and to proceed with the cause. A copy of the reeord having been filed in this court, the plaintiffs now move to have the cause remanded, as not being a removable cause. The defendant Alley opposes, upon the ground that the cause is removable because the bill discloses a separate controversy as to him. In determining this issue thus presented, the question arises at the outset whether, after the determination of the state court that no separate controversy is disclosed by the bill, the defendant is permitted to contend for a contrary decision of this court, upon a motion like the present. Hit were open to this court to decide that the state court was without jurisdiction to determine the question it undertook to determine when it decided to proceed with the cause, the case might be different. But the jurisdiction ofthe state court must be conceded upon the authority of the decision 01 the supreme court of the United States in Railroad 00. v. Dunn, 122 U. S. 513, 7 Sup. Ct. Rep. 1262, where it is said: "It (the petition) presents then to the state court a pure question of law; and that is whether, admitting the facts stated in the petition for removal to
Reported by Edw. G. Benedict, Esq., altha New York bar.