hearing on the question in Gaines v. FuenteB,-I am o,r opinion that this cause was removable under the of 1875, and that, upon its transfer under that act, this court ,became invested with jurisdiction to determine the controversy between the parties.
Motion to remand overruled.
- - , 1880.)
(Owouit Oourt, D. Ool.orado.
REYoVA:v-JUDGMENT--ApPEA:v-SCIRE FACIAS-AcT OF MARCH
1875.-Process was served upon, judgment was recovered against. and an appeal was taken by. two of several defendants in an action iIi a state court. A writ in the nature of a writ of 8cire facia8 was subsequently served upon two other of the defendants, while such appeal was pending, in order to make them parties to the jUdgment. Held, upon the petition of the last two defendants, that the case was not then in a condition to be removed to the circuit court, under the last clause of section 2, of the act of March 3, 1875.
Motion to Remand.
as to the citizenship of the parties, the plaintiff is n, citizc'l of this state, and the are citizens of other states, and upon that it would seem to be a controversy between citizens of different states, all of the defendants differing in their citizenship from the plaintiff; and it would seem, also, that the application for removal to this court is made under the last clause of section 2 of the act of 1875. That clause is that, in any suit mentioned in the Bection, if there Bhall be a controversy which is wholly between citizens of different states, that can be fully determined as between them, then one 01' more of the plaintiffs or defendants actually interested in Buch controversy may remove the cause to the circuit court; that is, all the defendants being citizens of states other than that of which the plaintiff iB a citizen, the application may be made by one or more of them; and upon Buch application, if the caUBe iB in condition to be removed, the removal may be had without the concurrence of others of the defendants. But there BeemB to be a difficulty aB to the condition of the case. As Btated before, judgment haB been rendered aB to two of the defendantB, and they have taken an appeal to the supreme court of the Btate. As to them, the cause is not in a condition for removal, because it has pasBed to an appellate tribunal, and the rule is that the removal must be had before the trial of the caUBe. As to the other defendants in the cause,-those who have been Berved and made thiB application for removal, and those who have not been served,-the caUS0 is in a condition for removal. But the controversy which is mentioned in this sectioniB regarded by the court as an entire thing,-that iB to say, the controversy iB between the plaintiff and all these defendants,-and it stands now in this attitude: that the controversy aB to two of the defendantB is pending in the Bupreme court of the Btate, and aB to the others, in the district court of the Btate, and it cannot be removed at all unlesB it be removed aB to all. We must have the whole of it, if we are to have any; and because as to two of the defendants it iB not removable, for that reason it iB not removable as to any. We have heretofore held that in a caUBe in
MOONEY V. AGNEW.
which jUdgment has been rendered against some of the defendants, and no appeal taken by those defendants from the judgment, that as to those defendants the controversy is ended; and, so far as it is still an existing controversy, standing between the plaintiff and those who still contest the right of the plaintiff, it may be removed iuto this court. But that is not the position of this case. The controversy is still going on; still waged between the plaintiff and the defendants against whom judgment has been taken, as well as against those against whom no judgment has been taken. If we consider further the attitude ot the case in the state COUl't, and the position of these parties who have been brought in, the reason for thi", conclusion will be more apparent. This writ which has been issued is in the nature of a writ of scire jucias, and it is to make the other parties, the persons served, parties to the judgment which has been rendered against the two defendants, and from which an appeal has been taken. If it should result in the supreme court of the state that this judgment should be reversed, there would be no of proceeding against these parties who are now served, because they are to be made parties to the judgment which is already of record in the district court of the state. If that judgment should be removed by the action of the supreme court of the state, there would be no basis forproceeJing against these defendants. This proceeding stands upon the theory that there is a judgment in the district court of the state to which these persons are to be made parties; and, if that judgment should be reversed or set aside, there could be no proceeding against them. Of course, we cannot be put in the position of having a suit here which will be subject to the contingency of reversal of the judgment of the district court of the state. The cause will be remanded according to the motion.
OF THE P£TITIOYOF MOORHEAD
Ry: CO., etc.
(District Oourt, D. Mmnesota.
REMOVAL-JuRIsDIcTIoN-Tum WHEN CAUSE CAN PROCEED.-In
the case of a removal the jurisdiction of the federal court is not complete, 80 as to hear and determine the cause, before the day prescribed by the statute, although a transcript has been filed.
Application to proceed with the condemnation of a. railroad and the necessary land. Bigelow, Flandrau & Clark and R. B. Galusha, for petitioner. Gilman & Clo1tgh, for respondent, the Northern Pacific Railroad Company. NELSON, D. J. The Barnesville & Moorhead Railway Company, organized under the general railroad laws of the state of Minnesot9., commenced proceedings under title 1, c. 34, Young's Minn. St., to obtain by condemnation a crossing over the track of the Northern Pacific road at or near Moorhead, in the county of Clay, and the land necessary for that purpose. The power to acquire by condemnation a crossing is granted by chapter 80, § 1, Minnesota Session Laws of 1879, and by section 3 the proceedings to obtain the land shall be instituted and conducted in the same manner as other similar proceedings by railroad companies under the General Statutes above alluded to, with some reservations, which are not important here. A petition stating the object a.nd amount of land, etc., to be taken was filed in accordance with the statutory provisions for the appointment of three commissioners to ascertain and report on the compensation, and presented to the district court of the state of Minnesota in and for the county where the land and crossing are sitnated, and proper notice given as required. At the time of the hearing, September 28, 1880, the Northern Pacific Railroad Company appeared by counsel and filed a petition stating, inter alia, that it will suffer damto a greater amount than $1,000; that it is a company and existing by virtue of certain acts of the congre83