elusions reached do not 'differ from those expressed in former opinion, reported, 30 Fed. Rep. 476, and it is not deemed necessary to go over the same ground again. .
BELMONT NAIL Co. ". COWMBIA IRON &
(Circuit Court, W. D.
CREDITORS' BILL-JOINDER OF COMPLAINANTS.
May 7, 1891.)
Where a creditor files a bill for himself and such other creditors as may join as complainants, any other creditor of the defendant should be permitted, on petition, to join in the suit as co-complainant.
After a receiver has been appointed in such suit, and other creditors have Joined as co-complainants, the original oomplainant cannot dismiss the suit without their consent.
SAME-JURISDICTION OF FEDERAL COURT.
The fact that such co-complainants were citizens of the same state as the defendant will not deprive the circuit courts of jurisdiction where the defendant and the original complainant are citizens of different states.
In Equity. Motion to dismiss bill. P. C. Knox, for complainant, and the motion. A. M. Imbrie, for Huckenstein. Geo. Shiras, Jr., for Totten & Hogg Iron & Steei FOUIidry Company, opposed. Before ACHESON, C. J., and REED, J.
. REED, J. The receiver was appointed April 9, 1891, upon the motion of the plaintiff, who ha<l filed the bill for itself and such others of the creditors of the defendant company who might join, as plaintiffs. The second prayer of the bill is that the property of the defendant be decreed to be a trust fund for the benefit of all its creditors; that an account be of all the debts of the defendant aiHl the assets oT the corporation; that the assets be applied i1) payment of the indebtedness of the defendant in proportion to the wholethereof; that the defendant be from diwosing of its assets; that a receiver may be appointed to take the trust}und, and distribute it among the several creditors who in and prove their 'claims under the decree to be obtained, shall , with power to ,hold, operate, and sell the said property of the defendant unqer the decree of the court.. On Apri114, 1891, John Huckenstein, claiming to be a creditor of the defendant, presented his petition, praying to be permitted to become a party to the proceedings, and joined as a plaintiff. To this petition an answer was filed by the defendant, in . which he is admitted. to bea creditor,but not to the amount claimed . by him. Pending a decision on his petition, the plaintiff, on May 1, 1891, madea moUon for leave to dismiss his bill, to which defendant's , counsel consents, but which is opposed by Mr. Huckenstein. Subse.quent to that motion, but prior to its argument, the Totten & Hogg Iron
COLuMBIA: IRON &: STEEL 00.
:'&; Steel Foundry Companypresented a petition, alleging that they are . r. . creditors of the defendant, and asking to be joined as plaintiffs. To this no has been filed. This creditor also opposed the dismissal of the bill. Both John Huckenstein and the foundry company should be permitted to join as plaintiffs. The bill having been filed as a bill for the benefit of creditors generally, the relief demanded being for the benefit of all, any creditor has a right to become a party plaintiff upon application to the court. Fast. Fed. Pr. pp. 88, 290; Forbes v. Railroad Co., 2 Woods, 334; Campbell v.Railroad CO., 1 Woods, 368. The question then remains whether the original plaintiff can move for and obtain leave to dismiss the bill, the defendant consenting; but the other creditors, who have asked leave to join, objecting. The rigUs of John Huckenstein should date back to the filing of his petition, which was before the motion to dismiss was made by the original plaintiff, and therefore, as co-plaintiff, his consent is requisite before dismissal of the bill solely upan the ground of consent of parties. But it is doubtful whether the original plaintiff could dismiss the bill, after the appointment of the receiver, without the consent of the other creditors. "After a decree has been made of such a kind that other persons besides the parties 011 the record are interested in the prosecution of it, neither the plaintiff, nor defendant, on the consent of the other, clJ,n obtain an order for the dismissal of the bill. Thus, where a' plaintiff sues on behalf of hirnself and all other persons of the same class, although he acts on own mere motion, and retains the absbltlte dominion of the suit until the decree, and may dismiss the bill at his pleasure, yet after a decree he cannot by his conduct deprive others of the same class of the benefit of a decree, if they think fit to prosecnte it." 1 Daniell, Oh. Pro 794. "After decree made establishing right of legatees to recover on a bill filed by one of several legatees, the complainant cannot. after such decree dismiss his bill to, the prejudice of the pther legatees." Collins V. Taylor's Ex'rs, 4 N. J. Eq. 163. A bill filed by one creditor, for the benefit of himself and others, for the appointment of a receiver of an insolvent bank is substantially it proceeding in beh,alf of all the creditors, imd the suit being once instituted as a statute remedy for all, the plaintiff has no power to discontinue the bill. AtUis Bank V. Nahmit Bank, 23 Pick. 480. Where an individu!il creditor had filed his bill againsta moneyed corporation, obtained an injunction and appointment of a receiver, and the receiver had taken upon himself the trust, and other creditors had filed their claims, it was held that the creditonvho had filed his bill, obtained the and the appointment of it receiver, was not entitled, as a mat, ter of right, upon being paid his demand, to dissolve the injunction, dis'miss his'bill, and discharge the receiver. Fay V. Har. (Mich.) ,194. The appointment of the rl'lceiver in this case was, in pursuance of , the prayer'of the bill, for the benefit of all the creditors, and was the ,. first step towards an: administrati6nofthe assets of the defendant cor'poration in'the interest of all its creditors; No reason had been given, or change ofoircumstancesifrom those existing at the time of theappointmellt' 'of the receiver shown, in support of the motion, except v,46F.no.5-22
that in some way the defeqdant cOllpol.'atipnhas, satisfied the .qf the:plaintiff. The court doubtless; has ,the power, upon proper upon being,flatisfied that interests of all ,parties, includ,ing all.tlle Would be adYll.ncedby the dismisslli1 ,of the bill" to its dismissal, even against the objection of 0lle or more of the creditors; but no such cause has been shown. Fay v. Bank, lfUpra. It was suggested on argument that the possible effect of the joinder of Mr.I;luckenstein and the, foundry cOUlpany as plaintiffs would be to oust the Jurisdiction of the court, as they were citizens of fennsylvania, the defendant being a corpo,ration or fennsylvania. That such would not he the effect was ruled in Stewart v. Dunham, 115 S. 61, 5 Sup. Ct. Rep, 1163, where it was held that, when a creditors' bill is properly removed from a state court to a circuit court of the United States on the ground that the contr,oY'ersy is wholly between citizens of different states, the jurisdiction of th,e latter court is not ousted by admitting in the circuit court as cG-plaintiffs other creditors who are citizens of the Bame state as the defendant. '
C.' AULTMAN &: Co:
(CIrcuit Oourt, N. D. OMo, E. D. June, 1891.)
Inasmuch as the circuit Court of the United States is vested with exclusive 'urisdiction to'try cases involving the validity of' patents issued by the United States, the rule that the Dleadings and practice shall conform, to the practice in like CRses In the state court does not apply, and in suoh a CRse the plaintiff cannot avail himself of the provisions of the Ohio statute (Code Ohio, §§ 5099-5101) bf attaching to his petition interrogatories to be BDswered by defendant on pain of belng defaulted! aDd thereby compel him to disclose testimony which ia important In the trial ox .
At Law·. On motion lor judgment. Marvin & Cook and Oharles S. for plaintiff'. Wm. A. Lynch and Oharles R. Miller, for defendant.
JACKSON and RICJ1;S,/JJ. This isa motion for judgment herein against the defendant by default for failure to "nswer the interrogatories annexed to the petition of the plaintiff filed .herein, as required by law. This i/3an action on the case. under of the Revised Statutes of the Unitl;ld States. The petition fiJeil in this case 11' prepared in accord,ancewith the Code,of Ohio. Secti9n of Revised St$.tutes of ;Ohio provides,tllat,,"a,party may tohisplea4jng, other than a derp.ur;rElr, pertinent, ,to, the in the pleadil1gs; which. iLnot deDlurred to, shall be, plainly and fully. answered under ,oath, by:,the par,ty to whoIXlthey arepropouncled, or, if . Buc1;lparty .is a corporat:iqn, by the president, BlilOtetary". or other officer therepf"JIB party pJ:opoundingreqJlires." Section 5100 provides: