(Oircuit Odtirt/B.D. Ohw, W.D. December 8t,I891.)
'Wbe'l1,the petition fcir\he removal ot a cause on the groUnll of diverse fa I10t tiled in the state !iourtbefore the answer-nay flxed'by the state laws, as reo quii-ed by the expresstel1lls 'of section 8 of the removal&Ot..oH887, (as amended by . AcllAug.18.18&S,) must be reJm'nded;"and that Ilodvantage he taken of default of answer in the state court, Aecause the suit was a 'joint one against the' 'defendant and another, who had'riot bee'Q served, is immaterial;",
OJ' OAUSI1S...,PIITI'!:ION IN SUTBCOli/;BT:-TIIIIB 01',
At'Law.Action by Joseph W. Davis, assistarit treasurer of Chamcpunty, Ohio, against Ephraim' Tillotson and Mary S. Tillotson to Heard on motion to remand to the state court, from which removed. Granted. " E. P. Middleton, for plaintiff. · ' Geo.M.Eit;helbergeran4 Harmon, Oolsten, GoldamUh & Hoadly, for defendants.
SAGE, J. The petition in this case was filed in the court of common pleas, of Champaign county, Ohio, the 21st of May, 1890, and on the same dfiY summons was issued. Oothe 27th day of May the summons was returned, served on Ephraim Tillotson personally. The answerday the 21st of June, 1890. The defendant Ephrai,r;n Tillotson, on the 28th dllY of June, 1890, appeared moved to quash the service ofp!ocess upon hIm, and for the dismissal of the cause for want of jurisdiction. At the May terln, 1891, of sai'li court, the motion was overruled, and leave was granted to the defendaJ;lt to answer by Augustl,18Ul. On the 13th of July, 1891, said defendant filed his petition for removll1 to the United States court upon the ground that he was a residElnt and citizen of the sta.te of Illinois, as wa/J also his wife, Mary E. Tillotson, who was his co-defendant. She has not been served with process., , The action is for the recovery of back taxes amounting to $15,466.59, with interest, and the statutory penalties, upon personal property ana credits alleged to ha.ve been withheld ):>y the defendants from listing f()r a series of years, beginning with 1884 and ending with 1889. It is urged the motion to remand that the action is upon a joint, and not a joint and severai, liability, and therefore nojudgment can be taken against the defendant Ephraim Tillotson, who filed the petition for removal. The contention in support of the removal is that, as no judgment can be taken against the defendant served until his co-defendant is brought before the court, he was not in default when he filed his petition for removal. But section 3 of the removal act of 1887, as amended August 13,1888, requires that the petition for removal be filed in the state court at or before the time when the defendant is required by the laws of the state, or the rule of the state court in which the suit is pending, to ansW'er or plead to the declaration or complaint of the plaintiff. That time
MAISH V. BIRD.
in thti'scase was the 21st of June, 1890. Whether a Judgment could have been taken upon the defendant's default is not material. It may be true that the case could proceed no further until the bringing in of his but he was none the lessin default, and unable to make, any defense without leave of court. If the absent has any property in the state of Ohio, a writ of attachment can be issued against her by the state court, on the ground of non-residence, and she brought innpon service by publication. That could not be done, upon t4e ground stated, in the federal court. While, therefore, there may be an advantage to tpe removil\lg defendant, resulting from the transfer of the cause to this court, the causecannbt be allowed to remain here, unless the petition for removal was filed in accordance with the provisions of law. I think it clear, upon the iacts, that the filing was too late. , . The cause will therefore Le remanded, at the costa of the defendants.
MAJeH ". BIRD
(OCreuit Court, D. Iowa, C. D. August, 188').)
L RBMOvAL OP
In a lIui'tiin a state court between citizens of the state to foreclose a mortgage, a non-residen.t. who was wade. ".party defendant on the ground .that he claimed some interest in the property, a cross-bill alleging that the mortg-age was fraudulent and void, and praYing' a decree' to set it· aside. HeZd, that the matters set forth were:purely matters of defense, which .might properly have been set up by answer, and hence the issues were subordinate to and inseparable from the main' controversy, and the nOll"residentdefendantwas not entitled to remove the cause to a federal court.
tels oreaWs no lien thereon, .in the absence of an actual levy.
CONTROVERSy-FoRECLOSURE OP MOBTGAGIL
ATTACllJQNT-GuNlsmmNTOil' PERSONS IN POSSIIlSSION-LmN.
The ervice of garnishment process upon: persons in possession ot: apeo1flc chat-
In Equity. Suit to foreclose a chattel mortgage. On motion to remand to the state court. Wright, Ounnmins & Wright, for plaintiff. N(iUree .AC: 'Kauffman and Brown &: DudJ.ey, for defendants. McCRARY, J. Maish, thfilholder and. owner of executed by Bird, brought his suit in a state court. to foreclose the same, making Morrison, Harriman & Co. defendants, on the that they claimed aninterest in/the mortgaged property. Maish and Bird are citizens of Iowa,. and .MQrrison, Harriman & Co. citizens of New York. The latter appeared and filed a cross-bill, alleging that the mortgage sued on is fraudulent and void, and. praying a decree to set it aside; and thereupon theY' petitioned the state court for a removal of the cause to. this on the ground that, under. their cross-bill, there is a controversy wh911y between ,citizens of different states, and which can be fully determined as between them. The original suit was not'removable. It was a ceeding,as to the main controversy, by one citizen9f Iowa against an-