cOtrllttlt (Jour'. N. D. Iowa. E. D.
BlwoVALOJl', ,.CAUSlllS-SlllPARA.BLlllCQNTROVEJ,tSy-NOIDNAL PARTIES.
a citizen of Io,,!'.1l1ed a !Jill thll;t a judgm!!'nt had bllllnfraudulentlyobtained agaInst the CIty of Cedar RapIds, Iowa, In favor of q.efeitdant:s.. a non-resident, by means of a combination between him and o.tllers I;Iartiel\ to the bill. The relief sought was to have the judgment declared void. The mayor, treasurer, and re.corder of the city were made defendants, that they might be restrained from }Jaying the judgment pendente liu. but it was not charged that they participated in the fraud, orthat they had any interest adverse to complainant. Held that, though there was no separable controversy between complainant and S., the other defendants , .were only nominal parties, their interest i.n fact adverse to S., and their joitJderall'defendantll could notldect the right of·S. w have the ClI.UBe retnov.8(1., ;. ..
. In Equity. Bill to cancel judgment. Her&ryRickel, for complainant.
SltIRA!8'1J·· ' ,This suit was originally. commenced. in the district court of. Linn Ooun.ty, Iowa, and was thence removed to this courl; upon the petition' of the defendantSt; John. The originlil bill charged that a judgment against fJ:1e city of Cedar Rapids had been fraudulentlyobtained upon certain illeglil wa.rrants issued by said city, and that a tax for the payment thereof hadlevied and was being collected, 'lind the coinplainant,as a residerit property owner and tax-payer, prayed an injunction· .restraining ·the collection of such tax, and also for a decree setting aside the judgment against the city. To this bill St. John, the owner-ofthejudgment, the mayor,recorder"and treasurer of the city, were made defendants. and upon motion in the state court a prelin1inary irijunction was granted. Upon the removal of the cause into this court, a motionto dissolve the injunction and demurrers to the bill were filed, and thereupon 'the oomplainant filed an amended and substituted bill of complaint, to .which H. W. St.John is. lilone made a defendant,.and Wihichprays .thaMhe judgment. ap;ainst the city of Cedar Rapids. be canceledand set, aside, and that a judgment in favor of the complainant for the .ul'\6of aaid city: of Cedar Rapids be entered against the defendant St. John for tbeamoUilt of money which he has heretofore collected. on judgment.' .TheJmotion to dissolve the preliminary injuDctioD Ilnd1 the demurrer,to the amended bill coming up for heaping, the court suggested the query"whetbel' the cause was one properly removable from thesta.te QQUHiI andcounseUor defendant has submitted brief on that; qUel!ltion. Tbe COmplMna.nt,May, was When the suit WQ,S brought, and now is, a citizen of Iowa, and the defendant St. John was and is a citizeno[Con· necticut, and the amount of the judgment soughJ itO set aside,is over 82,000. To the originlil bill filed in the state court there were made defendants the mayor, recorder, and treasurer of the city of Cedar Rapids,
,. :. 'MA,Y". ST. JOHN.
are<citizens'.of Iowa'. The st8ltf, tl).e petition for. removal upon the ground that there was a sep/lrable cqntirer versy existing!;between the oomp:1ainant and thedefendantSt, Jphn. Upon examination of the original bill it appears that the complainant therein charges that the judgment sought to be set aside was procured by a fraudulent combination between one Wilcox, the defendant S1. John, and certain officers of the city of Cedar Rapids and members of the city council, whose names are not therein particularly set out. It is not charged that Eaton, Stoddard, and Blain, the mayor, treasurer, and recorder, who are named as co-defendants, participated in the fraudulent ,procurement of the judgment, and it is apparent that they were made to get jurisdiction in the district court, and td restNlin parties.in them from paying the judgment until its validHy could be examined into. It is not averred nor shown that they have any interest in thematter in controversy adverse to the complainant, or any other interestthan, such as may arise from the fact that they are officers of the city' against whom the judgment is pending. It is difficult to see how it can be said that there are two controversies in the proceeding. Practically there is one controversy, and that is as to the validity of the claim neld by St. John against the city of Cedar Rapid's, and evidenced by the judgment in the bill described. This is the pivotal question. If it be decided in favor of the validity of the claim the bill falls as to all the defendants. If the decision is adverse to its validity, then the decree would in effect restrain all the defendants from enforcing it. Ifthe'issue between complainant and St.John, touching the validity of the claim, is decided, what other issue or controversy is there left to dispose of? That, being decided, ends the cause. But the very facts that show that there is but a single controversy in the cause equally show that in substance it is a controversy wholly between the complainant and the defendant St.John, in which the other parties named as co-defendants in the original bill have no interest. They are purely nominal parties l and as such their presence as defendants on the record does not affect the right of removal on behalf of St. John. Coal (1-0. v. Blatchford, 11 Wall. 177; Knapp v. Railroad Co., 20 Wall. 123; Hotel Co, v. Wade, 97 U. S. 13; Walden v. Skinner, 101 U. S. 577; Arapahoe Co.v. Railway Co., 4 Dill. 277;Baam v. Rives, 106 U. S. 99,1 Sup. Ct. Rep. 3. That this is the case is manifest from the action of complainant in filing the amended and substituted bill in this court, to which bill the only parties are the complainant and the defendant St. John. But, should it.be said that the other defendants named in the original bill. have some terest in the controversy, such interest is adverse to that of the judgment plaintiff St. John, and, under the ruling of the supreme court in The Re-m,oval Cases, 100 U. S. 457, and Harter v. Kernochan, 103 U. S. 569, we lUay disregard the particular position assigned to the parties in the drafting of the bill, and view them in the actual position they occupy towards the SUbject in controversy, in which case we find· a 'single controversy, upon one side of which is St John, the owner of the judgment, aciti" zen of Connecticut, and onlthe other the city of Cedar Rapids i andresI
idents thereof, all citizens of Iowa. As these facts appear on the record, the right of removal existed when the petition therefor was filed, and the state court rightfully granted the order of removal. '
et al· .".
«(JiMt,it Oourt, 8. D. Mi88UJ8ippi, E. D. .&lay 27, 1889.)
Its cash price at a forced sale is not the proper criterion for ascertaining the value of property in controversy. on the question of the jurisdiction of the federal courts. but the true rule is, what could it be sold for in the ordinary course of business?
.. TAXATION-REDEMPTION FROM: TAX-SALE.
Where. under a city charter. 18 months from the time the deed is filed with the mayor are allowed in which to redeem from a tax-sale, the period of redemption is to be computed frozp the time a deed, properly acknowledged, is tiled.
SAM:E-POWER TO LEVY
Where a city is authorized to levy "in each and every year" a tax not excee,ding 50 cents on the $100, a tax levied in 1886 for the year 1885 is invalid, and a sale therefor cannot be aided by an act curing irregularities in proceedthe enforcement of taxes. ings
In Equity. On final hearing. Bill by Berthold & Jennings against Isaac W. Hoskins and others, to set aside conveyances. NugMtJc Me Willie; for complainants. , Hiram 'Cassidy, for defendants. HILL.;J.This cause is submitted upon bill, answers, and proof, from which the following facts appear: On the 5th day of February, 1887, said,1. W.'iHoskins and wife executed a mortgage upon the real estate describEidinthe bill,which then belonged to said 1. W. Hoskins, to secure the payment of three nores executed by him to complainants. After the maturity of the notes, complainants, in the chancery court of Lincoln county, filed their bill against saiel Hoskins and wife to the mortgage, for the payment of the amount due on the mortgage notes, which resulted in their obtaining a decree from said chancery court of Lincoln county for foreclosure and a sale of saiel real estate. The property was purchased by complainants, and, by confirmation of the sale and deed of the commissioner on the 31st day of December, 1887, the title to the estate so sold and purchased was vested in complainants. At some time after the date of the mortgage, and hefore the sale of the real precise date does not real'estate was assessed for state and county taxes at the sum of $2,000, in the name of Mrs. EllaB. Hoskins, wife of I.' W. Hoskins. Ort the 4th day of January, 1886, the board of mayor and aldermen of the city of Brookhaven, in which the property is'situate, levied a tax upon the same of on