mCHMOND 'D. BROOKINGS.
RICHMOND tI.· BROOKINGS.
(O-lrcuf,t Court, D. Rhode Island.
November 28, 1891.)
REMOVAL OF CAUSES-DIVERSE CITIZENSHIP-FOREIGN ATTAOHMENT.
Altbougb tbe judgment in an action commenced [n a state court apinet a nonresident by foreign attachroent without personal service can bind the property only, and .not the person of the defendant, yet the latter is a party to the suit insucb senEathat tbesame may be removed to the federal circuit court on the ground of divt;lrse citizenship,
If the defendant could not in such case be considered a party for the purposes of removal, this would not be a ground for dismissing tbe cause in the federBJ. court, but only fpr rerolUlding to tbe state QOurt.,
Ol!' CIRCUIT COURT-NoN-RESIDENT OF DISTRIOT. .. . ,
Act .cong. 1888., § 1, .(25 at. U. s. p. 433,) PI'.oVi.din g that no suit shan be brought . in the circuit cOilrt "against p,ny flarson by any original process.* * * in any other district tMn that whereof lie is an inhabitant, .. only to suits commenced in that court; and, in a caseremol'ed to it from a state·couFt, its jurisdiction.is not a1fected by the tact that was not a resident.of the district, and that the state court had acquired jurisdiction by foreign attacbmenf without peri. sona!" service. Barnk v. PagtJllBtecher, 44 Fed. Rep. 705, followed. .. 4. A'J'TAQ:lIMEl"IT OF LUD-BE:\1'v·rQB .01\" NON-RESIDENT. J.. . The Rhode ls1anl1. statu/:8 in regard to attaching real estate requires personal serVIce on the defendaIit or service by leaving a copy with' some person at his reslbe h!l<\,'e'uo rB$idence within the' precinct of,the oftlcer; then by mail· Ing a copy to him, and serving a like copy on the person, If anf, in possession of the real estate. Beld, that when the return shows serVice ofa non-resident by maiijllga copy to him, ;but allusion to serving any person in possession of the bmd, the court has no Jurisdiction. 5. SAME-AMENDING RETURN· . return -may., however, be amended 80 as to show that no person was in poe116s$O. of the land!!, upon. aiIldavits showing such to be the fact. 6. MOTION TO . The question whether the declilration states a cause of action cannot be consid· ered upon a tp dismin, bilt must be .raised by demurrer. .
At Law. Action by William H. Richmond against Wilmot W. Brookings,commenced rQry proceS$ foreign attachment. 0 n motion to dis miss. Conditional order of dismissal. E. D..Bassett, for plaintiff. .. H. ,panBon, for defendant.
CARPENTER, J. This action was commenced in the conrt of common pleas for the county of Providence, in the state of Rhode Island, by attachment·of real estate of the defendant. The defendant was not personally.. served with process. He appeared specially, and filed a plea denying; .the jurisdiction of the court, and also a petition whereby the action was removed into this court. IJe now, still appearing specially, files a motion to dismiss the action "on the ground that he is not a resident or citizen of said stnte Of .Rhode Island, and was not found, or served upon personally with process, in said state or district of Rhode Island." In support of this motion the defendant first contends that this court can have no jurisdiction of any action wherein the defendant is not personally served with process, and cites Perkins v. Hendryx, 40 Fed. Rep. 657. I have already had occasion to consider this question in Bank v.
Pagtm8techer, 44 Fed. Rep. 705, and, following the reasoning of that <lase, I conclude that this coun has jurisdictiOn of the present action. The defendant further contends that the court has no jurisdiction, because the actiutdsnbt'between citizens 6f different sta:tci( In this action, the arg\lp?,ept rups, therfl can bl:l, no judgmE;lnt wpich can conclusively bind ' The judgment can be enforced only against :the actioh isthereforea proceedirizqueui inrem, l' cannot agtee with this argument. The judgment, it is true, can bind only the property; but' theJudgment isjnforma,ga"nst a.nd not against the property. It is therefore in its effect only, and ,not inite character, that the action can be called an aQtion in rtJ1!l; if th'is,l>e' hot so',still there is, no reasop wby,thftlloetion should ,be dismissed., .'If theacUon is not between per8011S be andhehce'itwas improperly removed to, tbis.court, and ought to be remanded. ' 'for ,Wbich w.ere argued iit the hearing, ,bl1tnot referred to in the written motion. The first is, that the return of thesheritr q6esnot isho",thatthe writ was duly the officer shall 4Heave,an'attestedcbt>1 of such writ' l"i * "ith the defendant perperson at his)ast and, place of abode, ifany heha'"vwithin the"precinct of the'ofDoer,or(if he, have none, then such officer shall send such copy by''inail to defendllnt.. ,.' * ' ** and. shall also in leave ,a'like copy with the person, if any, in possessioriOf such real estate;" ,In this case the}o'fiicet,re;,havil'lgno last.'and,usual' of. abode within his precinct, ,he bad sent ,the requiredMpy 'brrnail, but made no as to a copy to any I ,think this return It is' argued, that, 1J.S,the defendant is a non-resident, it 'to l Wip'teSuined that'tl6perSon Was' in', the c:ifhis 'real estate; but I see no possible ground" foi- such a'iprilsumption; " If, th,erefore, the return stands as at present, the action triost be dismisSed. The plaintiff, however, moves that the officer 'may amend ing a statement that' no person was in possession. This motion will be granted, if, properly:ana 'seasonably' 'by affidavit to effect thatsuehauiamended,,returh isinaccol'danaewith the facts, the defendant havinginotice of the :fi1ing' ,of the' an opportunity to ,contradicti itl.'fL!l'he secon,d ground: which wasarg\led' is that the declaout a:sufficient cause of action. I think thisques,tionis, not- propex:1y nUsedrby a motiOn to' dis'miss I but must be argued .on a demuuer. ' , Thei8.Ctionwill be dismissed, unless<'aflidavitin sup" 'port of ,th&motion tG amend be filed within 10 days.
M:'BEE17. MARIETTA &: N·. G. RY. CO.
MoBsE et al.
& N. G. Ry. Co. et al.
(Circuit Court. E. D. Tennessee, N. p. December 10, 1891.)
JURISDIOTION ·oFFEDERAL COURTS-DISTRICTS-NoN-RIlSIDENT DEFENDANT.
Act Aug. 18, ]888, § ], declates,among other things, that no civil suit shall be brought before the federal circ)lit or district courts against any person by orilPnal process in any other district than that whereof he is an inhabitant; but sectIon I) provides that nothing in this aot shall be construed to repeal or affect any jurisdiction or right mentioned in Act March 8, 18i5, § 8, ThiB section provides that in any suit toenfoi-ce any legal or equitable lien on, or claim tq, or to remove any lien or cloud upon, property situated iii the district where the suit is brought, defendants who are not inh.lbitants thereof may be made parties, and brought into court by the methods there prescribed. Held, that this latter section applies to an original bill, brought for the purpose of enforcing various liens upon part of a railroad lying in "he against the lien of a general mortgage, which is about to be foreclosed in the same court by a suit ancillary to another suitln a different district and state; and such original bill may be maintained, although some of the defendlUlts are non-residents of the district.
BAlIE.,...,CJTlZENSHIP OF PABTlES-SUPPLFMENTARY PROCEEDING.
While such bill is an original bill within the meaning of that term as used in. eqUity pleadlDg, yet'the SUit, in its· essence, is supplementary to the ancillary foreclosure suit. whioh it Seeks to OppOell, snd bence the court's jurisdiction is unaffeoted by the fact tbat when tbeparties are arranged according to their interests intlle:spit, $ome wllo are residents of the same state will be found on opposite sides of the co?troversy.
In Equity. Bill by V. E. Mol3ee and others against the Marietta &; North Georgia. Railway Company, the Central Trust Company of New York, and others, setting. up certain liens upon a railroad, and opposing the. forecloBu·re of a mortgage thereon, as injurious to their rights. On motion to dismiss the bill. Denied. Wa8hbum . Templeton, & ShieU18, J. W. OaldweU, and W. T. Welcker,}orplaintifls. . . Henry B. P(}mpki'll8and G. N.TUlman, for defendants.
KEY,J'. The Central Trust Company of New York, 13th January, 18,91, filed its bill in, this court against the Marietta & North Railway Company, tha.t it had lately filed its bill in the circuit United States for the northern district of Georgia for the court of a mortgage executed by saiq. ;railway company January 1, 1887, to secure its bonds to the.amountof.$3,821,OOO upon its entire property, and frllnchise8; interest upon the bonds to be lines of paid. semi-IUlm;1811y. The, bill shows that the prolJerty covered by the mortgage extends from Ml\rietta,Ga., to Knoxville, Tenn.; that the is a corporation created by the laws of Georgia and railway North eatolina. Themain line pf;road is 205 mUes long, of which 951 mile!! ,JleJn Georgia and roUes How or by what authority,the railway company came into TeIille!c'see the bill does not disCllose.Th0biUallegesthat the defendunt has made default in the payment MittHnterest, and is. iIisolvent; .asks to have this bill cillilrytQ' 81litin Geotgiato'liavea receiver appointed.; the mortgage .and the moneY,I1.risipg applied to the .pay the -boPAJ.:,·o'n,the complainants Mc;Bee, al. filed