HENDERSON fl. CABELL.
(Oircuit Court, N. D. Texas. June 2, 1890.)
REMOVAL OJ!' CAUSES-MoTION TO REMAND-GROUNDS.
It is no ground for a motion to remand a cause to the state court that the petition for removal was not joined in by one of the defendants, who is merely a nominal defendant, against whom plaintifE seeks no relief, and who asks no relief against plaintifE. The suit had been brought in the state court to recover 18,500. Plaintiff alleged as ground for his motion to remand that he had brought suit in the district court on the same cause of action to recover $4,500, but that defendants procured the dis- . missal of that suit on. the ground that the amount actually due was less than $2,000, and that hence they were estopped from removing the present suit to tbe circuit court. Held that, by suing to recover $3,500. plaintiff is estopped from raising any objection to the jurisdiction of the circuit court based on the amount claimed..
At Law. On motion to remand. C. a.Cobb, for plaintiff. J. M.McCormick, for defendants.
MCCORMICK, J. On July 26, 1888, the plaintiff instituted this suit in the state district court for Dallas county, claiming damages in the sum of just $2,000. After the time at which defendants were required to answer this petition by the rules of practice in said state court, and after defendllnts had answered the same, the plaintiff filed his amended. petition, cl8.hning damages in the sum of $3,500; and· thereupon the fendante presented their petition and bond for removal of the case to this court, on the ground that there was involved in the controversy a f 'deral question, stated in the petition for removal. On the 1st day of October, 1889, the state court accepted said bond, and ordered the mov9.1 of the to this court; and the transcript was filed in this court on the 21st day of October, 1889, The plaintiff now presents his motion to remand the cause on the following grounds, to-wit: "Fi1'St. It appears from tne record herein that all the defendants did not joinin the petition ami .bond for removal filed herein; the defendant S. C. (Jarroll not joining in the same. Second. The bond for removal herein is not payable to S. C. Carroll, the defendant not joining in the removal; and there is no removal bond herein payable to said S. C. Carroll. Third. The bond for removal is not conditioned'ss required by law, in that it fails to bind the petitioners for removal to appesr and enter special bail in such SUit, if special bail was originally requisite tberein. Fou1'th. The petitioners for removal did not file acopy of tbe record,. and enter their appearance in this court, on the first day of its next session beld next after filing the petition and bond for removal in the·state court, nor within twenty days after filing said petition and bond for removal in the state court. .Fifth. It appears that the transcript from the district court of Dallas county is an incomplete record of the proceedings had in said district court, in that it does not contain a copy of the answer of S. C. Carroll" which was filed ill said district court prior to the filing of the petition for removal therein. Sixth. As further cause for remanding, they show that on May 3, 1887, tbeplaintiff herein filed in the cir. cuit court of the United States for the northern district of Texas, at Dallas, a.: suit against W. L. Cabell and otl:1ers, the defendants, petitioners for ra- . v.48F.noA-17
moval herein. on the same and identical cause of action herein declared on by plaintiff. in which he .$4,500 damages. and that the defendants, petitioners for removal tierein, appeared' in' said cause in said United States filed therein a plea to the jul'isdiction. in which court. and on June, 2. they set out that the plaintiff thereiri had 'Wrongfully alleged the value of his goods taken. and damages suffered, at au amount exceeding $2,QOO. for the cpnferring jurisdiction upon said court. whereas in fact the value of ,bisgoods taken. and damages suffered. did not exceed $2,000, etc., and they prayed .that bis 'suit be dismissed for want of jurisdiction; that said plea to the jurisdictj'm was 1lpon its merits submitted to a jury. who .. verdict in, faVOr of, the defendants petitioning for removal herein. and judgment was aqcordingly entered in said Unit\ld States court in favor of the defendants therein, they being the i!lentical defendants petitioning for' removal herein, and against tb(lre!n, he being the identical plaintiffbeteip,. dismissing said cll\lse. it being the identical cause herein sued on. from said::United States court, for want of jurisdiction, and awarding costs against the plaintiff; that said judgment of dismissal was rendered on June 5, 1888. and still remains in full force awl in no wise re"ersed or made void, and this they are ready to verify by the said say that it is res adjudicata,' that the court bas not jurisdiction .to hear and determine this cause; and that it shoUld be remanded tofhe state court. whence it was removed. Seventh. As further ground for remanding this cause.tliey, say' that by reaEialI'of the acts of the defendants petitioning for reqone as abo,v!l set forth, in not permitting tbis cause to go to; trial uvon as in tPfj United States court at the !lame wasbefore court. aSllbp\r-e set forth. but in interposing said plea to the juriSdiction, aM prosecutiJig the same to .final jUdgment in favor. as abovesEitforth, and tbereby forcing plaintiff to lile his 8uit fnthe state court,' or else:abandon his cause of Mtionaltogether. tbeyare forever estopped and prevented from removingtbis ,cause to· this court, and therefore it should be remanded. ',', The plaintiff asks no relief against the defendant expressly so states that' the plaintiff asks no relief as against said Carroll. He is c1eafly a:purely nominal 'rletendant. He asks 110 reliehigainst the plaintiff, except tO"be let alone. By thus joining a nominal defendant who' will not unite with the real defendants in an application to remove, the plaintiffoannot defeat the' ']'i:lal defendants' right to remove. Allen MiUer, 11 0hid St. 374.. This disposes of the y.rst, the above zl)otion. . . " ". , '. As to fC?urth gronnd"the facts are these: Thetirst term of the circuit courtJor this. district, after the order of removal was made, was held at Graham, in Young county. In this districtthereis only one clerk for theoircuit eourt; but he has three deputies, who in point of factreside'snd usually remain at the several points where the terms are beld. ChaHes II. Lednum,Esq.,. is one ,of these, deputies, and resides afDallas, ang.the one who received the transcript in this. case at Dallas on the 21st day:of October, 1889, and placed the file mark on it on that date. The defendants, while insi$ting that placing the transcript in the hands ofthe clerk, atatiy'Ofhis' offices or places for the 'proper custody of SUCh, .20 days from the day of theqrder of removal, was a' compliance with their duty" yet present as a reason for placing it . in pantis of the,clerk's deputy jl.t DaJ.la:s, instead of at Graham,that
259 :they were unable to get the'transcript from the state court until' day of October, the last day of the 20 days allowed when the next term occurs within less'than 20 days from the making of the order of removal. From the record it appears that all the parties reside at Dallas. The .attorneys also reside at Dallas. ·The matter is not jurisdictional. I do not think 'the fourth ground well taken. As to the sixth and seventh grounds of the motion, the plaintiff, having sued the defendants for the sum of $3,500 in the state court, will not be heard in this court, on a motion to remand, to say that the amount involved is not sufficient to give this court jurisdiction. What. ever use the defendants may be able to make. of the matters presented in these grounds of the motion, it is clear to my mind that the plaintiff is estopped by his Bubsequent institution of this suit for $3,500 in the state court from presenting these grounds for his motion to remand. The motion is refused.
SCRIPTER V. BARTLESON
(OirC1lif,t Oourt, D. Minne8ota. July 7,1890.)
MORTGAGES-REDEMPTION-CREDITORS OF MORTGAGOR.
A judgment creditor who has redeemed sufficient property of his debtor from foreclosure to satisfy his judgment cannot make a valid redemption of other property. Persons purchasing from a judgment creditor lands redeemed by him after enough had been previously redeemed to satisfy his judgment cannot claim as innooent purchasers.
Sum-SALE BY CREDITOR.
In Equity. On .bill to remove cloud froin title. Warner, Stevens &; Lawrence, for plaintiff. ChaB. J. Bartleson, for· defendants.
MILLER, Justice. It seems that one Sprague was the owner of certain lots, the subject of -controversy in this suit; that he and his wife afterwards sold his interest to Scripter, the present plaintiff. The object of the bill is to relieve the title which thus came to him through the Spragues of a cloud cast upon it by an attempt to redeem the lots in controversy from a judicial sale against Sprague. The redemptioner, Francis Martin, had a judgment against Sprague in the common-law court. Sprague had' several pieces of property covered by different mortgages. The mortgages were foreclosed, and the property sold under them. Martin, exercising the right of a judgment creditor to redeem, redeemed some ofthelots·which were· first foreclosed and as to which the time of rawould have heanfirst to expire. After a while he proceeded upon the saine judgment to redeem the lots sold later, which are the ones in' controversy.. Martin, after redeeming these lots, sold them to variouspers()nB, who are made parties to this proceeding, and the object