"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'!' .
" ,; l",
! j; " : I
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
to remand ground-:-First f because tlJe and bond for removal were nol presented in time;' second, because the petition for removal does not show a state of facts involving any federal question, or calling for the construction of .any. aCt of congress or of the constitution of the of the subject-matter of this suit.. United States in the In a case where one Owen Sullivan had' after the 3.d day of March, 1887, sued John C. Brown, receiyer of the Texas & Pacific Railway Company, and recovered judgment in t4e state court, affirmecl on appeal to the state supreme court,(10 W. Rep. 288,) and presented his petition of intervention in the suit of Missouri Pac. By. Co. v. Texas Pac. Ry. Co.,(41 Fed. Rep. 311,)in which said John C. Brown had been appointed court for the district of Loureceiver by.the United States isiana,w4ich suit was pending on and before thtl3d day of March, 1887, ,the circuit judge of tbis circuit presiding !lIld delivering the the ."that the necessity of obtaining leave to prosecute a suit against .1;10' receiver appointed by another court is jurisdictional,." citing Barton Barbour, 104 U.S. 126, The circuit judge's opinion proceeds: jurisdiction over its rt'ceiver as to actions "This conrt. has exclusi ve based on negligence in the.operc\tion of the trust property when the act of 1887 was passed. If the third section of that act went into immediate operation quoad this cause, then 'it seems clear that such act affects the jurisdiction over a suit theil' pending, and this the repealing clause prohibits. 'It alSo seemscll'ar:that whatever jurisdiction the district court of Harrison county away from thi$ court. acquired by sai<}.act was sOlUuch jurisdiction It would st'em to folluw that, as to the receiver of the Texas & Pacific Hailway, the .act c;>f 1887 did not take effect, and that therefore the district court of Hatrison Texas, 'Was without jurisdiction to entertain a suit against such receiver." Page 314; It is urged by defendant's counsel with certainly some apparent force that it is immaterial what is the sound construction of the act of 1887 affecting this case; that the faetthat it must be construed in ordertq determine the plaintiffs' right to sue presents such a federal as authonzes the removal. Whether this view be. sound or not, it. seems opinion as to the to me that in the, as yet, unsettled state of correct cOl-lstruction of the provisions of the act of on this supject, the petition for removal does present a federal question, which the defend!lllt is to have' pa.ssed on by the United States court, ifhe lost his right.to remove by his delay in presenting his tion therefor. , the application' to remove made in time? . The statutory rule governing the practice in the 'state 00urts requires the defendant who is duly served with legal citation to answer the petition on or hefore the fifth day of the return-term. Rev. St. Tex. art. 1263. Where the citation is defective, and the defendant moves to quash the citation, the practice requires him to answer on or beJore the fifth day of the succeeding temI. ld. art. 1243. Motions to dissolve injunctions can be heard in vacation only "after answer filed." ld. art. 2891. The defendant had the right to tile his petitIOn for removal in the state court" at the time or any time before" he was required by the laws of the state to answer the
FEDERA.l. REPORTER, vol. 43.
I-etitioJofthe plaintiff. Act Aug. 13, 1888, §1,(25 U. S. St. 435.) The provision is not, at the time or before he does answer, or at the time or before he crosses interrogatories, or at the time he enters his appearance in the state court. There is no question as to submitting to the jurisdiction of the state court involved in this limitation. It is purely a limitation, of tinie definitely and clearly fixed by the rules of practice prescribed by statute or rules orcourt in the state tribunals. It seems clear' to me that in this case the defendant was' not required to answer the petition of the plaintiff' before the fifth day of the April term, 1890, of the state court, before which day this application was made. But the defendant also urges that plaintiffs' original and first amended petition pl'esented no cause ofaction against the defendant, and that, the second amended petition now constituting the petition of plaintiffs, he certainly caulonot be required to answer before the first day qf the first term of the co'Urt after it was'pleaded, on which day his application for removal wasm:ade. It appeare from an inspectipn of the pleadings that the original and first amellded lJetition do not show any privity of the plaintiffs inthe contract on' which this suit is based. In a very similar case the supreme court'bf this state in announcing itS decision use this language:, "The suit for relief, it eeems to us, will hays ti> be prosecuted either ,in behalf of the city as a corporation, or by euch of its citizens as participated in the transactions, and have in them a pecuniary interest." Railway Co. v. Harris, 73 Tex. 382, 11 S. W, Rep. 405. There is no question iumy mind tliat, where an amended petition makes a substantil:illy suit from the 011gina1 petition, tl1elitnitation as to the time withfn which the petition' for removal can be presented should relate to the new pleading of the plaintiff. As an illustratioll of the propriety and nellessity of so holdirig, take the casewhere a party sues in tlie state 'courts, alleging the cause of controversy to be of less value, or not of greater value, than $2,000, and after the return-term, and after tHe defendant has answered, the plaintiff files an/l.mended petition, setcause of action, but claiming damages ina sum exceed': ting up' the ing $2,000, cali it be doubted that, ifthe state of the parties or the cause ofacti6nbes'lich as to have given the right to remove had the amount in controversy bllen suffiCient to give this' court jurisdiction, the defendant would not ,be denied his right to remove because the time. within I am which he was Teqilired to answer the original petition had of opinion that the defendant's application for was made in time, and the motion to remand will be refused. "i .· ' '
J'ORD II. DELTA & PINE LAND
(Circuit Oourt, S. D. Mislrissippf. August 18, 1890.)
An exemption from taxation of the capital stock and "all the property and effects" of a railroad company will not be extended by implioation to outlying awl detaohed lands whioh the oorporation had no power to acquire when the exemptiop. was granted, but whioh were acquired under a power granted by the subsequent oharter.
Aot. Miss. Feb. 18, 1867, (liquidating levee law,) levying a tax on the lands in the levee distriot for the payment of the levee bonds, and providing that, in case of default, the land should be Bold, oonstituted "oontract between the state and the bondhOlders that the taxes oollected, and the lands purohased by the levee commissionera for default in the tax, should be held for the payment of the bonds. Though the aot provided that all the land on which the tax was not paid before a certain day in eaoh year should on that day be sold for said taxes, suoh lands might thereafter be sold for such taxes, and the irregularity oured by act of the legislature. ' A return of process, defeotive on its faoe, In that it does not show the relation of the person served to the defendant oorporation, is cured br. a recital in the judgment that the defendant had been duly and legally served Wlth process. Code Miss.. 1880, § 1038, provides that the franchise of a railroad corporation may be sold to satisfy a judgment, the purchaller to have the rights and duties given and imposed br the charter. Section 1039 allows six months for redemption. Section 1041 prOVIdes that aU corporations, after their oharters have expired or been annulled, shall nevertheless be continued bodies cOi'porate for three years thereafter for the purpose of suing and being sued and olosing up their busfness. Held, that, where a railroad company franohise was sold with the rest of the property on a decree of foreclosure, and the purchasers organized a Dew corporation under an act of the legislature, the old corporation ceased to exist at the end of three year6 thereafter. Code Miss. 1880, § 2674, provides that all aotions on a judglI1ent or deoree ren" ' dered in the state must be brought within seven years thereafter. It further provides that no exeoution shall issue on such judgment or decree after sevenyilars from the date of the last preceding exeoution, but it makes no provision for the continuance of the lien of the first judgment. Held, the rendition of a judgment on a judgment did not continue the lien of the first judgment.
'" PROCESS-RETURN CURED BY JUDGMENT.
LIEN OF .JUDGMENT-CONTINUANCE.
In Equity. Corle Miss. 1880, § 1038, provides that the franchise of a railroad corporation may be sold to satisfy a judgment. Section 1039 allows six months for redemption. Section 1"041 provides that all corporations, after their, charters have expiredor been annulled, shall nevertheless be continued bodies corporate for three years thereafter for the purpose of tiuing and being sued and closing up their business. Whitfield &:SuUivan and Ed. Mayes, for complainant. Frank Johnson and James R. Yerger, for deflmdants.
HILI" J. This cause is submitted upon bill, answers, exhibits, and proofs, and argument ofthe counsel. The pleadings and proofs are exceedingly voluminous, but, after having been carefully examined and .cQnsidered, they show the follewing facts: On the 23dday of. November, 1859,an actWL\S passed. by the legisoftqiS;jitate "to iucotporate the HollySprings,&Mobils'