'M. & S. CO.
M. &: S. CO. et. al.
May 4, 1888.)
(mrcuit COU'l't, D. Oolorn(lo.
REMOVAL OF CAUSES-SEPARABLE CONTROVERSY.
Where plaintiffs' title to the product of a mine has been established bya decree in a state court. a proceeding by plaintiffs against the same and other defendants, to obtain possession of their rights under the decree, although independent in form and involving a defendant who a superior title by, purchase, is in effect merely a supplementary proceeding, inseparably connected with the original decree, and therefore not removable to the
On Motion to Remand. J. T. Vaile, for cumplainants. Goo.J. Boal, tor deftmdants.
BREWER,' O.J. In Wolcott and others v. The Aspen Mining &: Smelting Company ,and ot'Jl,ers there is, a motion to remand. Three grounds are presented. The first and third are passed with the single observation that very properly an interrogation mark might' be put at the end of each of the questions The second I consider more fully, be';' cause I think it the more important, and it is decisive. The proposition in that is that this suit or proceeding in the state court was merely ancillaryto a case already determined in the district court, and transferred by appeal and now pending in the supreme court of the state. The facts are these: In a suit in the state court, in which these plaintiffs were intervenors, their title was adjudicated to a fraction of interest in the Emma mine. Some of these defendants were detimdants in that suit. One J. B. Wheeler was the owner of a large portion of the adverse interests. After that decree an appeal Wl!-S taken to the supreme court, and it is there, pending. That decree, as I said, established the title of the present plaintiffs to a fractional interest in the Emma mine. This complaint, which' is in the nature of a bill in equity in this court, was filed as an independent complaint; and yet the form in which these things are pursued is immaterial; we always go back to the substance of the transaction. It is a proceeding to enforce possession of the same fractional share of the product of that mine as was given by the decree. It sj)ts forth the decree. It shows there has been a certain amount of prod- , net frOm that mine; and is a proceeding to enforce plaintiffs' right to that proportionate share of the product of the mine. The Aspen Mining & Smeltipg Company, principal and removing defendant, purchased, as .alleged,-,after that decree, from Wheeler. In its answer, nol denying, that decree or those proceedings or its purchase, it sets up ownership in this ore by reason of a purchase of the apex of the vein, and, of course, that inteIjects into this litigation that controversy between other parties which Was compromised a week ago. Now, it is settled that a proceed-. mg whipp i,8 merely ancillary, and for the purpose of carrying into effect .an existing judgment or decree, is not removable; the case in which the:
judgment or decree was originally entered not having been removed. The case of B.uford y. Strother,S McCrary., ,2:53" presentsh. careful and well-considered discussion of the question, and lays down the principle which is recognized as correct and controlling in this circuit, and \vhich has never been challenged or overturned by the supreme court. That was a cqse in which three removal$ were sought,-two proceedings by after j\ldgn.'lent, and the third asuit to obtain,a satislaction of judgment against a corporation olit ofthe stockholders.' In the course of that discussion J lays down, this proposition:
co It seelDS to me that the'true princfple is this: Where the supplemental proceeding is in its character a mere mode of execution. or of relief, inseparablyconnected with the original judgment or decree, it cannot be removed, notwithstanding the fact that some new controversy Of issue between the, plaintiff in the original action and the new party. Dlayarise out of the proceeding; but where the supplemental proceeding is not merely a mode of execution or relief, but where it in fact involves an independent controversy with some naw and different party, ,it may be removed into the federal court; always, ofcourse/s$Suming that otherwise the proper jurisdicti'onal facts exist. Every court lXlust, 'in the nat 11 re of things, have the right, as· wall as the power, to. carry:itsown jUdgments into execution. To take from any court the prerogative .exequting its. own jUdgments by proper process, orb,1 supplemental would\:le itO cJ'lpple its jurisdiction in a lJlost essential ',",'i.,,' ;' .. matter. .
Now,1't is obVious that would be no more than fair that a court which has eStablished the title to property should beperxhitted to continue in POSsessioilofthe proceedings to put the party whose title it has established"inpossessiori of that property. When the.state court decreed that these plaintiffs were the owhers of this fractional interest in the Emma mine, it was but executing that decree to see that they were pu.t in ofthesmile interestSi'ntheproducts oHhatmine; and that certainly in the federal could have been bya mere petition in the ease asking injunction, accounting, abd receiver, as was done here by this independent complaint. As I said,the form in which this thing is done is immaterinL It is. the subatance we look at; and all that 'is sought to be accomplished by this coriiplaintis to put these plaintiffs inpossessioti of that property, the.title to, which has already been established by a decree in the state court. It is true that an independent issue is presented in that this defendant, having purchased the title of WhetHer and others, whichwaslitigated in th.at case, affirms also that it bas made a further purchase by which it a right perlor to Wheeler and all tpeownerS of the Emtria mine; "There is, therefore,an iridependent interjected into the controversy;' but that, as Judge UrvE 'well says, does not make'it any the less a pilrt and parcel and contithiance of theoriginal1itiga:tioll. 'I repeat;· '. il; .. :. i:.J ._ . . f '; . . in a mode of c.xecutionot dfrelief, wlth.the orlgmalJudgmeIl.t Or decree. iteannot be removed, the, fact that sonle new contraversyorissue between ·thapllli'utiff in the otiginal action and a 'new party may . . . arise out ,of,' the proceedings."
',: 'i.J ,'. ,: .
KALAMAZOO WAGON' OO.·V. SNAVELY.
A case which 'further iiluetratEm this is cited by'hiro,-that of 'Webber v. H'UlYYllphreys, 5 DiU. 225,-where, after a judgment, against a corporation under the Missouri statute, a proceeding wasinstittlted to authorize stockholder; and it was held that this latter execution against would proceeding was not removable, ll.lthoughin it was be, naturally, an independent issue as to whether this party sought to ;becharged inexecution was or waS not a stockholderin the corporation. ,So; believing that this, case, although a new issue is interjected into it, is,1 looking at it in substance and not in form, simply a proceeding to carry into effect a decree already rendered in the state court, and whioh ,cannot be removed to this court, the motion to remand will be sustained.
eOtrcuit (Jourt, D. Ka1UJatJ.
.April 9, laaa.)
On Motion to Remand. W. A., Johnsm and A. Bergen, for the motion. t .J. -E. GiJl,patrick and Osborne &; MiUB, contra.
FOSTER, J. The plaintiff, in September, 1885, obtained judgment in the district court of Anderson county against M. B. Snavely for $2,046, and on this judgment issued execution. Defendant having no goods or execution was levied on ta tract of land in Anderson county, ,as the ptoperty of said judgment'debtor, by order of said plaintiff. Thereup'ort the plaintiff'brought suit in snid state court against said M. B. Snavely, Harry E. Snavely and others, for the purpose of subjecting said real estate to the payment of his judgment.. "He charges that said real estate waS purchased and paid for by said judgment debtor, and that 1\thisinsW,uce tbe deedwa:s made directly to said:Harry E. Snavely by the and David Lindsey, who are made defendants,and silid grantee for said rea,l eE\tate, thatrio'cohsideration was paid and thltti such purchase and transfer was so made and procured. by' the ilaidM'. B,'Snavely while he was llltgely in debt to variotlspartios, and