& Co. et al.
Where a p,roper bond and petition have been filed in thestBte court, tbe omission to ask that court to act on the petition is no ground for rema1;ldlng the cause, espec.lallY whe.re n. 0 term of the stateconrt Intervenes between'the filing of the petition andthemotion to remand, and the jUdge of that court has refused to consider the petition until the court is, in Bession. Whet:etbie controversy is between the oomplalnantandthe remoVing defendant, who are citizens of different states, th.e faot thll,t there Bre other defendants, citizens of state, does not prevent the case from being removable, where the interest of one C)f such co-defendantll Is Identical with tbatof complainant, and ilIe other co-defeDrjlantB merelYnomlnal parties.
In On motion to x:emand. Willard <t' Willard and L. L. Delano, for complainant. Berryhill Henry and R. G. Phelp8, for defendants. SHtRAs, From the record in this cause it appears that in November, Nelson & Co., a corporation created under the laws of the state of Illinois, entered into a written contract with C. E.Myers & Co., of the state of Iowa, doing at Atlantic, Iowa, in regard to purchasing, .cril)bing, shelling, and forwarding, a large quantity 0fp9;tC-n, the said Murray Nelson & Co. agreeing to at;lv.ance the money needed. to make tlle :PUrcQasfl of said Qorn,the quantity to be purchased not to exceed 100,OQO that. on the 12tb day of May, ;1.890,. said C. K Myers & CQ.; in writing, assigned the said contract and allrights thereunder Brown, a citizen of Iowa; that dis-
putes atose between said Murray Nelson & Co. and said Brown as to their rights under said contract; that the present bill in equity was brought' by said Brown in the district court of Audubon county, Iowa, to settle the rights of the parties, and for an accounting, it being averred that said Murray Nelson & Co. and their agent W. L. May were about to remove from Iowa the balance of the corn not previously shipped to ChicagOj that the issuance of an injunction pending suit was prayed for, and also the appointment of a receiver; that a preliminary writ of injunction was granted by one of the judges of the state court, and the application for the appointment of a receiver was set down for hearing after notice to the defendants, such hearing to be had at the court-house in Atlantic, August 25, 1890, with leave to both parties to submit evidence orally or by affidavits; that on the 23d day of August, 1890, there was filed in the office of the clerk of the district court of Audubon county in said cause a petition for the removal of said case to the United States court, with a bond in proper form; that on the 25th day of August, 1890, the petition for removal was submitted to the judge of said Audubon county court, at the time and place set down by him for hearing the application for the appointment of a receiverj that said judge held that he, as judge of said court. had no authority to receive or act upon said petition for· removal, and ordered that said petition and bond be returned for presentation to the district court of Audubon county, Iowa; that thereupon said Murray NelsollA1; Co. procured a certified transcript olall papers and pleadings filed in said cause, and filed them in thjs court on the 22d day of September, 1890; that the term of court in Audubon county to which the notice served therein was returnable begins on the 14th day of October; that the amount involved in the controversy ex.. ceeds $2,000jand that on the 29th day of September, 1890, the complainant, Theodore H. Brown, filed in this court a motion to remand the case to the state court. The first ground urged in support of the motion to remand is that the petition for· removal has not been presented to the state court for its action thereon, which it is claimed is a prerequisite to thl' attaching of the jurisdiction of this court. Counsel cite the case of Stone v. South Carolirw, 117 U. S. 430, 6 Sup. Ct. Rep. 799, as fill authority for this tion. That cause came before the supreme court on a writ of error to the supreme court of South, Carolina, and prellented the question whether the petition for removal filed in the state court showed upon its face that the right of removal existed. The supreme court of the United States held that"A state court is not bound to surrender its jurisdiction of a suit on a petition for removal until a case has been made which on its face shows that the petitioner halt a rhtht to the transfer. Yulee v. Vose, 99 U. S. 539, 545; Removal Cases, 100 U. S. 457,474. It is undoubtedly true. as was said in 8team-ShipOo. 'v. Tugman, 106 U.13. 118. 122, 1 Sup. Ct. Rep. 58, that upon the filing of the petition and bond, the suit being removable under the statute, the jurisdiction of the state court absolutf'lyceases, and that of the circuit court of the United-8tates immediately attaches; but still, as the right of iemovaljs· a party can avail himself of it, he must show
that his is acasewhicbcomes within the provision of the statute." This opinion"read in connection with the authorities cited therein, declares the rule to be that, if the petition for removal, taken in connection with the record of which it becomes part, shows upon its face that the cause is one removable under the provisions of the statutes of the United States, then the filing of the petition and bond terminates the jUl'isdiction of the state court, and caUses that of the United States court to attach to the cause. The state court has the right to decide for itself whether the record shows that its jurisdiction has been terminated, and the United States oourt, in like manner, has the right to dejide for itself,when a transcriptofthe record is filed, whether the record shows that its jurisdiction has attached. Both courts in this matter proceed at their peril, but the rule given US by the supreme court of the United States is that if, upon the filing of a petition for removal and the reqbond, the record of ,the case shows that it is a removable cause, then; 1Jpon the filing of the petition and bond, the jurisdiction of the e-tate court ceases, and that of the United States court attaches to the case. It is not the presentation of the petition and bond to the court in ()pen session that terminates the jurisdiction, but the filing the same, so that the, same become part. of the record of the particular suit. As a matter ofcorrect practice, not, however, as affecting the jurisdiction, it is ,due to the state court that the party seeking the removal should in due season, present the petition for removal to the state court, and invoke its consideration thereof, for it might be that the court might proceed in the cause without actual knowledge of the fact that its jurisdiction had been attacked. Under the provisions of the act of congress, it is made the duty of the·party seeking the removal of a case to file the transcript at the next ensuing 'term of the circuit court. In this case the term of the United States court began at Co.unci! Bluffs on September 22d; which was before the. opening of the term of the district court in Audubon county; andheace the party seeking the removal was required to file the transcript in this court by that day, which was done. It also appears t.hat; upon the day set fotthe heating of the application forthe appointment of a receiver, the fact of the filing of the petition for removal and the accompanying bond was brought to the attention of the judge, who declined to consider it until the court was in 8ession in Audubon county. Counsel certainly did in this respect all that could be required of them. When the term of thi!! court opened, September 22d, the transcript was filed in this court, as required by the statute; and tpereupon complainant,throl1gh his counsel, appeared in this court, and on th& 29th of September moved to remand the case to the state court. When the motion to remahd was filed,the session of court in Auduhon CQtlnty had not commenced, and no laches in any particular could be imputed tothe party seeking the of the cause. If, the record shows upon its face that the cause is a removable l,lJ;le, then the motion to remand is not well taken. "As already stated, the complainant w.as when the suit was.brought, and
P. R. CO.
the removal was petitioned for, a citizen of Iowa, and Murray Nelson & Co. was a corporation created under the laws of lllinois. C. E. Myers & .Co. are named as defendants, but their interest is identical with that of complainant, the controver::>y in the case being between C: E. Myer£! & Co. and Theodore H. Brown, on the one hand, and :Murray Nelson & Co., on the other, between whom the requisite diversity of citizenship is shown to exist. W. L. May is declared against merely as the agent of the corporation. No relief is asked against him, and it dearlyappe!trs that he is purely a nominal party; and the same is true of the remaining defendants, Bell, Ditnmick, and Nutter. Their appear in the caption of the bill, but they are not otherwise named or mentioned. hence there is nothing appearing on the face of the rec;" ord showing that they have any interest inthe controversy. Being merel),' nominal .parties, their presence does riot affect the jurisdiction over. the actual cbritroversy involved. Wood v. Da'vis, 18 How. 467; Bacon v: Rives, U. S. 99, 1 Sup. Ct. Rep. 3. In the Dill filed, it is averred, ilotOrily that Murray Nelson & Co. is an llJinois corporation, but also that it is' a non-resident of Iowa, so that it appears upon the face of record that the petitioning corporation is not only an Illinois corporatic)ij, but that it· is also a non-resident of Iowa. The motion to remand is overruled.
SIOUX CITY & ST. P. R. Co. et al.
(CtrcuttCourt, N. D. Iowa. W. D. October Term, 1890.)
1. PtmLIC LANDs-RAILROAD AID GRANT. Act Congo May 12, 1864, granted to tbe state of Iowa, for tbe' purpose of aiding in the construction of a railroad from Sioux City to the Minnesota state line; and from a:point OD such road to South McGregor. every alternate section of land for 10 miles from such roads not otherwise dispelled of. with indemnity for such o1isposed-Of land. The former road was built, except a part where all the granted land had been previously sold. Held., that said road was only entitlAil to such part of the grant as was proportioned to the part of the road tbat was bunt. . II. SAME. Said rOQ,d having been decreed to be entitled to only a moiety of the land included in the grant to both roads, it is entitled to indemnity fdr the moiety thus lost.
In Equity. Bill for adJustment of land grant. . . W. H. H. Miller, Atty. Gen., E. O. Hughes, and W. L. Joy, for complainant. J. H. k 0. M. Swan. for defendants. . SHIRAS, J. The congress of the United States, by the act approved May 12, 1864, granted to the state of Iowa, for the purpose of aiding in the construction of a· railroad from Siou:x. City to the south line of the state of Minnesoia, to such point on said line as the state of Iowa might select. between the Big Sioux and the west fork of the Des Moines river, and 8ls0 a line of railroad from South McGregor, in said state, running