EVANS II. DILLINGllAIL
(Circuit Court, N. D. Texas.
June 9, 1890.)
REMOVAL Oll' CAUSES-FEDERAL QUESTION-REOEIVERS.
A suit against a receiver appointed by a federal court, brought in a state court without leave of the federal court, is removable, since it involves a federal question. Where au amended petition is filed, which makes a substantially different (mit from that stated in the original petition, the time for removinl/: the cause is to be calculated with to the amended petition.
In Equity. On motion to remand. R. S. Neblett, W.J. McKie, and W. S. Simkins, for complainants. L. 0. Alexander and F. O. 1JiJJ.ard, for defendants. MCOORMICK,J. On the 13th day of September, 1889, several citizens of Corsicana brought this suit for injunction, a preliminary injunction having been granted by one of the state district judges, to restrain Charles Dillingham, receiver of the Houston & Texas Central Railway, from removing the division head-quarters of said road, and the machineshops and 'other plant connected therewith, from Corsicana to ;Ennis. The suitwas brought witbout obtaining leave of the court which appointed said receiver. The suit in which said Charles Dillingham was appointed receiver was pending on and before the 3d of March, 1887. A defective citation was served on the defenoant in time:, if the citation had been legal, to compel him to plead at the October, 1889, term of the state district court. for county; that is, on or before the 18th day of October, 1889. On the 14th day of October, 1889, the defendant crossed certain interrogatories to a witness propounded by plaintiffs, and filed certain cross-interrogatories in the state court. At said term of said C<lurt, and on the 18th day of October, 1889, tbe defendant, appearing only for the purpose of moving to quash the citation, filed his motion to quash said citation. This motion, though never acted on, (for reasons hereafter shown,) was manifestly well taken; anti it is admitted by plaintiffs' counsel that the citation was defective, and did not require defendant to anSWer. The defendant also, on the 14th day of November, 1889, filed in the state court a suggestion that the presiding judge of said court was disqualified by pecuniary interest in said suit to hear and try his motion to quash the citation, orany other question in said cause, and on the same day, (November 14th,) filed a written agreemep.t signed by the attorneys of the plaintiffs and the defendant to the effect ,.that the presiding judge was a citizen and resident of Corsicana, and, owned real estate and personal property in said town of the ofat least 86,000. On the 16th day of November the court entered a minute to the effect that the judge, believing himself disqualified on the ground of interest, refused to pass on the motion to quash citation. On the 15th day of March, 1890, defendant 'Charles Dillingham filed his motion in the state court to dissolve the preliminary injunction, and atthe same time filed his answer, beginning with this proteM: v.48F.no.8-12
"And now comes Charles Dillingham, receiver, and protests that this court has no jurisdiction t5J determinethill from the performance of the functions and duties as receiver of the property of the Houston & Texas Central ltailWay, and U\e"management Jpereo-f, under the directiOIl of the United States court for 5th circuit and the eastern district of Texas,from :Whi?h he received his
Onthe'2dJ (layofApril,'1890, the originalpersqria plaintiff,joined by in the sta,te O()urt,what they call their f'SeeonilJ in lieu of their p,etition, filed 13th September, 1889, and their' amended p'etitiOll" filed January 13, 1890. Notice of filing said amendment ,5(}rved ,Oon the counsel,for S,d, ,On the AP!i1, .1890, the-nrst day or the second term of thest,a.te court after the mshtution of the suit, the defendants their petition and horia fo'r the removal of only ,o.f it is necesthe sa,ry whIch in the, removal, to1:'1 .:. r. j
tpdihe.r stlow,that this in controy.ers,yaroSe under the con· the its c()rrect decitdon deplln1supon thecolJstl:9,ctiWV>f the, cl>Ustit\lUonauJIlaws of the United maY' be footed ·01' by ·the' 'petitIOners show that 'leave of said United ,Stlalies circuit court to bringtJ:ds,suit,noc bassaidreceiver,yieldt>dto;the jurisdiction of said IIonq. w saill suit can. be main tained· and 113id. receiver be enjoined b;y of sai4 rail':Va¥ PI'OPlll"ty under, tile its order 10, 1890,_a ofwIllChl$ a, pa,rt rellqrd,. att,ached,.tp.a speCIal ans wer of saId' DdhHgham on motion ·todlssolve,an n'IJunctlOn, sued out by a part of these l'llaiht!tt&irlliboVEl tfqmbered,and sty-lEld- dause, dependsu'pon the proper, constructionbf an act ofcongl'ess. (chapter 866) enti'tled · An act!tO\ correct the appl:l.?:Vil1l hundJ:li1cl and,eighty seyen, and 10, ,the t,he of the States, and reg,ula,te the removal from. 'courts, .andfol' other purpos\'s, approved March tltird/eiijllteeri h'liildred'andsevelltyfi ve,'it'approved August 13; 18SS, '---'for 8ay,that said< $6ction 3 'Of said act,underwllich it is sought to maintain ;thls tult, is inconllicbwitb paragraph lof.sedtion 2 of. article 3 of !>f,tne thatllfl,id act anl:'l. sections thereof th,is !luit. insaidl statll,c9lUt, becailse.saidcirCUlt cqurt and because, as shpwn, the said dectees,:theS,uitJtl'Whichsaid l'eceiver was'appointed \\'as brought and pend. ing before 'passage of said act, and because it is not the' character of action authol,ized .by said, act to; be; brollght in a lltlltecourt 'without leave, a,nd becal,ls6,ibdQell .not,eoilfel' tbepower on'a-state court ta.direot or 'enjoin the acof or its pr0C6S11 directed .to him; and tmoH ;exempt!on ,the juris?l<;tion of said cOlnt" \ln4 ,exemption 1'1;om thecla\ms to,enJolD bun as to hIS actIOns as the r.¢ei Veri and' officier 'of said United States circuit court'!' .
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reIlloval was lin· the state court, but on the thf!.t, QQurt order f0r (tbeJremoYlal' was· granted, .and i tbi& ';,el:u.ld"i :,'£be I plaintiffs now Dlo.ve