1096, ao far as it touches upon the question here presented, would seem to be adverse to plaintiff's rights to maintain this suit. That case was brought under the act of 1875, and, while the direction of the supreme court to dismiss the bill for want of jurisdiction seems to have been mainly upon another ground, yet"so far as it affects this case at all, it is not favorable to the plaintiff's rights. Other reasons have been urged for giving thia restriction the limited meaning contended for by plaintiff, some of which would be important if doubt was entertained as to its construction in this connection; but none of the reasons suggested can have force in view of what appears to be the plain meaning and intent bf the language used. It seems clear, therefore, tha't this demurrer must be sustained, and it will be so ordered. The circuit judge, with whom I have consulted, concurs in the elusions reached.
'V. COUNCIL BLUFFS INS. Co.
(Oircuit Court,NoD; 10000a, E. D. March 18, 1889.) .
CoURTS-FEDERAL JURISDICTION'-SUITS BY ASSIGNEES-AUXILIARY PROCEEDINGS.
ThQugh an assignee. cannot institute an action in the feder,al courts because of diverse citizenship. undertbe act of 1875, unless his assignor could have done so. yet, the action havillg been brought in the state court, and the assignee and the defendant being citizens of different sta.tes, the cause is removable. and. having been removed, and having afterwards been continued for the purpose of enabling plaintiff to file a bill for a reformation, which it was held was necessary before. be could maintain such action, such bill is auxiliary to the first action. and i.s properly brought in the federal court. Wh.ere an action on an insurance policy has been brought withinths time limited by the policy. a bill for reformation of the policy, in aid thereof. is not barred though. lifter such time. Such bill is not a suit on the policy within the meaning of the limitation.
S.·INSURANCE-AcTION ON POLICy-LIMITATION.
In Equity. On demurrer to bill. Bill by Rosenbaum Bros. against the Council Bluffs Insurance Company. For opinion on motion to set aside the order granting leave to file the bill, see ante, 7. Charles A. Clark and F. A. Hormel, for complainants. Sapp &- PU8ey and Henderson, Hurd, Daniela &- KieBel, for defendant.
SHIRAS, J.. The bill in tbis cause was filed by complainants for the purpose of reforming a.policy of insurance, issued by the defendant company: in the name of upon an elevator building and other property situated in Benton county, Iowa; the property having been destroyed by fire. G.G. Abraham, who is named in the policy as a mortgagee, the policy andhis:interest in the contract of insurance to com. plainants, who brought an action at law against the company,averring therein the be covered by the insurance was
ROSENBAUM: V. COUNCIL ·RLUFFS INS. CO.
that of Abraham, who was the real owner of the property, and that the company knew such· fact; and issued the policy to cover such interest. On demurrer it was held that to sustain the action at law it was necessary to procure a reformation of the contract, and that action was continued for the purpose of enabling complainants to file a bill in equity for that purpose. The proceeding now before the court is instituted for that purpose, and to the bill as defendant demurs on several grounds, the first of which is that it appears froUl the bill that the complainants, who are citizens of Illinois, are suing as the assignees of Abraham, who is a citizen of Iowa, under the laws of which state the defendant company was incorporated; and that, as Abraham could not bring this suit in the federal court, being a citizen of the same state as defendant, neither can com plainants, as transferees of the policy, If this proceeding was an independent suit, having no relation to the action at law, the point made would have merit. The proceeding, however, is a dependency of the law action, as is held in Abmham v. In8uranceCo., p08t, 731, and, being auxiliary thereto, the jurisdiction is sustainable if the court has jurisdiction of the law action. Krippendorfv. Hyde,110U.S.276, 4 Sup. Ct. Rep. 27. The law action was brought in the state court, in 1884; and was removed by the defendant under the local prejudice clause ofthe statute. While it is true that under the provisions oftheaot of 1875 the action could noth,ave been originally brought in the federal court, yet it is no less true that, when brought ill a state court1 it was removable into the United States court, for the reason that the restriction applicable to original suits by indorseesor assignees is not applicable in cases brought originally in state courts, and removedthenctl to a federal court. ClajUn v. Ins. Co., llOU. S. 81, 3 Sup. Ct. Rep. 507. Jurisdiction, therefore, existing of the action at law, all auxiliary or dependent proceedings necessary to the full and final hearing and disposition of that action are sustainable in the federal court, without regard to the .citizenship of the parties. The second ground of demurrer is that by the provisions of the policy no suit or action thereon can be maintained unless brought within six months from the happening of the loss. and that the lapse of time is therefore a bar to the proceeding. The action at law was brought within the time limited, and this provision is not a bar to that action. The pres.ent proceeding is in aid thereof, in the same sense that invoking the action of the court in granting commissions for taking testimony is merely a proceeding in aid of the law action. The filing of the hill for the purpose of perfecting the evidence to be used on the trial of the law action is not the .bringing of a suit upon the policy, within the true meaning :and intent of the clause in question. The lapse oftime can no more be relied on to bar this proceeding than it could be relied on to prevent taking testimony by commission in aiel of the law action. The demurrer is therefore overruled, and leave granted to defendant to answer the bill by the April rule-day.
HDERAL. REPORTER, vo};37·.
TAFTt'. STEPHENS LITH.
(Circuit Oourt, E. D. MisBour.,E. D. March 20, 1889.)
FEDERAL CoURTS-JURISDICTION OF CmCUIT COURT-COPYRIGHT LAWS-QUI TAM ACTIONS.
In view of act July 8, 1870, 106, conferring on the circuit courts jurisdiction of all actions arising under the copyright laws, whether civil or penal in their nature, those courts, under Rev. St. U. S. 629, cJ. 9, giving them jurisdiction of all suits arising under the copyright laws, have jurisdiction of qui tam actions for penalties imposed by section 4963, for violations of the law reo lating to copyrIght, though by section 563 the district courts have jurisdiction of all suits for penalties and forfeitures incurred under the laws of the United States.
At .Law.. · On plea to jurisdiction. Qwi tam action by Marcus H. Taft, who sues, etc., against the Stephens Lithographing & Engraving Company. W. E. JiliBBe, for plaintiff. .Paul Bakewell, for defendant. THAYER, J. This is a qui tam action, brought to reoover certain pen.;. alties imposed by section 4963, Re\'. St. U. S., for violations of the law relating to copyright. Defendant's attorney contends that the jurisdiction to recover penalties of such character is vested in the United States district court, and not in the circuit court. He has accordingly filed a plea to the jurisdiction. By section ,9 of the judiciary act of 178\;}, United States district courts were given jurisdiction "of all suitB for penalties and forfeitures incurred under the laws of the United States." Thia clause has ever since continued in force, and reappears in the Revised Statutes of the Uni1ed States as subdivision 3 of section 563. Suits to recover penalties imposed by the laws of the United ::;tates must accord- . ingly be brought in the United States district court, unless jurisdiction to recover a particular penalty is vested in the circuit court by the statute imposing the penalty. It is claimed by plaintiff's attorney that jurisdiction of suits to recover penalties imposed by section 4963, is vested in the United States circuit court by the ninth clause of section 629, Rev. St. U. S., which gives that court jurisdiction "of all suits at law or in equity under ,the patent and copyright laws of the United States." If the claim was bastld solely. on the phraseology of the 'ninth clause of section 629, we should be disposed to overrule it. and to hold that the suits therein referred to, and over which,the circuit court is given jurisdiction, are ordinary civil suits at law and in equity to recover damages for, or to restrain, infringements ,of patents and copyrights, and that the clause does not confer jurisdiction upon this court over suits of a penal character; that is, of suits ·brought to recover penalties Imposed by the patent and copyright laws.. It must in mind, however, that the ninth clause of section 629 is based on sections 55 and 106 of" An act to consolidate and amend the statutes relating to patents and copyrights," approved July 8,1870, (16 SL. at Large, 206,215.) We infer
s. K. MARTIN 'LUMBJllR CO.
that the revisers, in the ninth elause of, ection 629, did not ins tend to disturb the jurisdiction then vested in the United States circuit <lourt,conferred by the two sections of the act last alluded to. By ref·erence to the act ofJuly 8,1870, it will be seen that section 106 provides J'that all actions, suits, controversies, and cases arising under the copyright laws of the United States shall be originally cognizable, as well in ·equity as at law, whether civil or penal in their nature, by the circuit ·<lourts of the United States, or any district court having tht:jurisdiction of a cirouit court." Prior to that enactment congress had expressly authorized certain other penalties imposed by the copyri!!:ht laws to be sued .for in the circuit as well as in the district courts of the United ·States. Vide 14 St. at Large, 395, § 1, act Eeb. 18, 1867. In view of section 106 of the act of July 8, 1870, we think. it clear that congress intended thereby to give the United States circuit courts jurisdiction of suits brought to recover penalties imposed by the copyright laws of the United States, and that it retains such jurisdiction since the revision of ·the laws of the United States, by virtue of clause 90f section 629, supra. The reference made in section 106 of the act of July 8, 1870, to suits of thatqwi tam actions a penal as well as of a civilllature, makes it .arising under the copyright .laws were within the contemplation of congress when that section was enacted, and that jurisdiction of such suits was intended to be conferred on.the circuit court. The plea to the jurisdiction ill accordingly overruled.
'v. S. K.
(OircuitOourt. W·.D. Micltigan, S. D. February 19,1889.)
!lEMOVAL OF CAUBES-PRACTICE-Tnm TO PLlllAD.
Under the statute requiring that after the filing of the petition and bond for removal the petitioner 8hall file a copy of the record in the circuit court on thetir8t dllyof the next term, and that the cause 8hall then proceed in the same !panner a8 if it had been originally commenced in. said circuit court, while the court's' jurisdiction becomes vested when the petition and bond are filed" the time for pleading does not begin to run till the record is entered.
$mitf!., Nims, Hoyt & ,Erwin, <;ontra.
SEVlJJn:NS, J. The plaintiffs commenced this action in the circuit court ·for eO,u.»ty of Musl«-gon by an attachment, for the purpose of recovering an alleged indebtedness due to them from the defendant. . The defendar.i, ali. the time its appearance was due in that court, filed therein its petition for removal into the circuit court of the United States, setting it was. a corporation orgaIli.zed under law-eaf Illinois, having that ,the. were .all its principal place; of .QUfliness at Chicago,
UM :&. orane, for the motion,
Motion to set aside Q,efault and other proceedillga. ,