CHICAGO & E.
& E. 1. R. CO · . (Circuit Court, 8. D. New York. November 24,1887.)
REMOVAL OF CAUSES-PLEA-JURISDICTION OF COURT.
An lilinois corporation was sued in the supreme court of New York, and the Cause was removed to the federal circuit court for the Southern district, whereupon defendant filed a plea alleging that the court had no jurisdiction, or, if it had, that it ought not to exercise it, for the rAason that the cause could be tried with greater convenience in the courts of Illinois. Held that, as no controlling authority appeared to warrant such a proceeding, the plea should be overruled.
Plea in Equity. JohnW. Weed, for complainant. AtlAJtenG. Fox, for defendant. COXE,J:. The complainant is a citizen of New York. The defendant is an Illinois corporation. The action was commenced in the autumn 6f18S6 in the supreme court of this state: The who is the owner of income bonds issued by the defendant, the par value of which is $62,500, seeks to compel an accounting from the defendant of its net earnings,. and the application thereof to the payment of the interest upon his bonds; he also asks for an injunction restraining the disposition of the earnings until the interest is paid. The defendant, having entered a general appearance, and removed the cause to this court, demurred, upon the theory that the trustee under the mortgage given to secure the complainant's bonds was a necessary party. The demurrer was overruled. 30 Fed. Rep. 397. Subsequently the defendant filed an answer on the merits, and also a plea disputing the jurisdiction of the court, upon the ground that the defendant is a foreign corporation, having no property, and transacting no business, in this district. Upon the'argument of the plea the counsel for the defendant admitted that this court has jurisdiction of the subject-matter of the suit, and of the perSOn of the defendant: See Robinson v. Stock- Yard Co., 12 lfed. Rep. 361; Jonea v. Andrews, 10 Wall. 327; Block v. Railroad Co., 21 Fed. Rep. 529; Kelsey v. Railroad Co., 14 Blatchf. 89; Gracie v.Palmer, 8 Wheat. 699; Flanders v, Insurance Co., 3 Mason, 158. But it is contended by the defendant that, although the court has the power to djsRose ofthe cause, it may, in its discretion, send the parties to the courts of Illinois, where the questions at issue can be more conveniently and properly determined, and that this discretion should be exercised. The assertion that the cause can be tried with greater 90nvenience in Illinois is vigorously disputed by the complainant. As this court has in several similar instances retained juriSdiction, and as no controlling.authority has been cited sustaining the view of the defendant,it is thought that the plea must be overruled. The answer already filed may stand. It is of course unnecessary to pass upon the complainant's objection ,that the defendant, by answering upon the merits, waived its plea',
, FEDERAL REPORTER.
JUDGES OF SCOTLAND COUNTY.
(Circuit Court, E.
Judgment went against a Missouri county on certain railroad aid bonds issued by it, and the holder applied 'for mandam1l8 to compel a tax levy to pay the jUdgment. Thecounty'judges returned that they had already levied the tax; that there was no law, either when the bonds were executed or when the writ was served, authorizing a special levy; that the judgment could only bE' paid by warrants drawn on the treasury, payable out of the usual county taxes; that there were no funds, and that if they obeyed the writ they would be guilty of a misdemeanor under the laws of the state. As a matter of fact, when the bonds were issued tllerewas alaw(Wag. St. Ed. 1872, p. 306, § 21) authorizing counties to "levy a special, tax; to PaY the interest on such bonds, or to provide a sinking fund to pS:y the principal." . In addition, the county courts tllen had a general power "to audit and settle all demands against'the county," and "to levy such sums as were anniIally necessary to defraY the expenses of the county." Wag. St. 441, § 9; page 1193, $:I 165. Deli/" that the return was insufficient, the judgment having determined the validity of and the rights of the holder being fixed by the laws in force at the date of issue, and any order made in the case by the federal court bei»,g llomple protection to the county judges., of
OF STATE AND FEDERAL-LEVY OF TAX-COUNTY BoNDS.
F. '1. !Iug'he8 and John A. OveraU, for ,relator. (Jwnningham,forrespondents.
Maruj,am:U8 to Compel the Levyofa Special Tax by the county judges county.· "On, dep:lUrrer 'to, r:esI>0ndent's return.
TH","YER,' J., (orally.) In cases a'53 and 1287, consolidated, (United States ex rel. WiUiamHiU v. Scotland ()Qunty,) the demurrer. to the respondent's return to .the alternative writ of mandamt1.8 will be sustained. In this case" ,omitting the parts of the return, the respondents say: ,"Th!\t l\tthe,date of the execution of the bonds on which the judgment in the there was no law of the state of Missouri, and is no law at the' present date, authorizing them .to levy any special tax for the purpoSe of paying 'tp.e judgment, or fOl'thepurpose of Pll>ying the bon<is." ", , in,¥ay, 1887, they tax, for county purposes,offlve mills upon eacll one pundred dollars of an assessed valuation of less than two milliOJi,dollars,andthat their predecessol'if had levied a similar tax in previous un!ier the state laws now l\nd heretofore in force, the relator's jUdgmentcanimly be paid by warrants drawn on the county treasury, payable 'out of taxes levied for county purposes, and that the treasurer has no fQ,nds,. and. thatothe result would be, if, they obeyed,the writ. that I;,hey would . be guilty of grave crimes and misdemeanors, under the laws of the state of Missouri." . .;, ' ., :,Tl1lS pll,rt ,of the return is ob,viously an insufficient plea to an alternato enforce the payment of a judgment against the :COU11ty. For the most part, it is a mere recital of the construction. placed by the , certain general Jaws. of the state, which the court is notice of, as Rfj to construe. would, have been