IWCLAUt ,. PIEBCB,
SINCLAIR 11. PIERCE
(Cir.euU Oou71, D. Ma8800hIIUetti. Hay 5, 1892.)
REMOTAL OP CAUSES+AtM'lIORITT OP STATE AND FEDERAL COURTS.
try, 11 Sup. Ct. Rep. 806, 138 U. S: 298, followed·
Questions of fact arising on a petition for removal are for the federal court atone, and the state court has no jurisdiction to determine them. Raf.liroad Co. v. It seems from Frmich v. Hft!l, 22 Wall. 250, that a federal circuit court bas jurisdiction of a bill to enjoin tbe prosecution of a case in a state court, on tbe ground that it has heen removed to the federal court..
.. SAME-I:NolUNCTION TO STATE COURT-JURISOICTION.
An action for damages was brought In a state court against an umy officer and two other persona for. wrongfully arresting and detaining an alleged deserter. The other defendanta were defaUlted, and the officer Illed a petition and bond for removal on the ground that the case arose under the laws of the United States. The atate court held the petition insuftlcient, and waa about to proceed with the trial, when the officer applied to the federal court to enjoin further proceedings. Held that, as the right of removal by the defendant after default of his codefend· ants was extremely doubtful, (Putnmn v. Ingrtlhnm, 114 U. S. 57,5 Sup. Ct. Rep. Hltx v. Cltspar,81 Fed. Rep. 499,) and as the question presented was only one of the Inconvenience and expense of double litill'ation, the Injunction should be denied without prejudice to a renewal of the application, in the expectation tbat, OD proper representations, the state court would swy proceeding. unt.il a decillion could be had on a motion t.o remand.
In Equity. On application for an injunction restraining the prosecution of a suit in a state court. Refused. An action of tort for an assault and false imprisonment at common law was commenced by writ dated the5th day of November, A. D. 1891, and issued from the superior court in and for the county of l\1iddlesex in the commonwealth of Massachusetts, in which writ one of the respondents, Charles M. Pierce, of Lowell, in said Massachusetts, is plaintiff, and the other respondent, Jerome F. Manning, is counsel for said Pierce, Peck and William S. Sampson, both of !laid Massachuand George setts, and the complainant, William Sinclair, of the state of Ohio, who is in the military service olthe United States. and stationed as commander at Ft. Warren, in Boston harbor, ami within the jurisdiction of this court, are defendants. The ad dllmnum of the writ is $25,000. The allegations of the plaintiff in the state court are that he was arrested as a deserter by said Peck, and taken to Ft. Warren, where he was imprisoned by said Sinclair for 20 days, at the end of which time, not being found to be a deserter, he was discharged; to all of which the said Peck and Sinclair were incited by said Sampson. The defi:mdants PE.'ck and Sampson were defaulted. The defendallt Sinclair alone duly filed in the state court a petition for the removal of the case to the circuit court, on the ground that his duties as com manlIer of the fort, tile orders of the secretary of state, the United States statutes, and the anny regulations compelled him to do whatever acts he hall done, and that the Ruit is of a civil nature,and arises under the constitution of the United States. The necessary bondha.l been duly filed in the state court, and a transcript of the of the record duly filed with the clerk of the circuit court. The state court did not deem the petition for rtlwuva! sufficient, and refused
FEDEItAL ·I'EPORTER ,·vol'
to grant or recognize it;. and the case was on the eve of trial when this bill was brought. The complainant says in his bill that upon the filing of the aforesaid petition in the state court and the other preliminary papers the jurisdicti<;m of the state court thereupon ceased, and the jurisdiction of the circuit court attached in accordance with the act of congress, chapter 866 of the Acts of 1888, (25 St. at Large, 433.) A restrllining order was immediately issued, and a summons to show cause why a temporary injunction should not issue and a subprena to answer to the bill were served upon the re8pondents. The respondents filed a motion to dissolve the restraining order. On May 3, 1892, a hearing was had before PUTNAM, J., upon the request for a temporary injunction, and upon the motion to dissolve the restraining order. Frank D. Allen, Dist. Atty., and J. M. Marshall, Asst. Dist. Atty., for complainant. .Jerome F. Manning, for respondents.
PUTNAM, Circuit Judge. The jurisdiction to entertain thisbiIl appears to hesustli,ined by French v. Hay, 22 Wall. 250, as applied in Railroad .co. v,. Jibrd, 35 Fed. Rep. 170. The jurisdiction is also recognized in Wagner v.IYrake,31 Fed. Rep. 849. The existing statutes ofr<m:}.oval contain two important features, one of which did not before exist, and the other was not so emphasized as it: now is. The state,court, has no jurisdiction to determine questions of fll-ct arising on petitions for removal .. The United States circuit court has final jurisdiction in relation thereto. Railroad Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306. If a motion to remand is heard in a United States circuit court, and there allowed, th,e result is conclusive in all courts, and terminates the controversy as to the right or regularity of remQval. In re Coo, 49. Fed. Rep .. 481. .The pending case sought to be removed presents a controvl:lrsy especially appropriate for the federal courts, and it will probably reach them in .some form at some stage. Bock v. Perkins, 139 U·.S.628, 11 proceeded in Sup. Ct. Rep. 677. It is also evident the district good faith, and in accordance with his official duty, in asking a removal. Under these circumstances, it can hardly. be doubted that, if the attention of the state court is carefully brought to the foregoing cqnsiderations, it will stay proceedings until the in the state court has used reasonable efforts to secure a decision of the United States circuit court on a motionto remand. Certainly it must be presumed that a single judge United States of the state courts is as capable as a single judge of courts ()f weighing the great inconvenience and unnecessary expense of double litigation when it can be avoided. Therefore, as, in this instance, the right Qfa single defendant to remove. is in great doubt, notwithl:ltandiilg the defimdants have beeu defaulted, (Putnam v. Ingraham, 114 V.S. Ct. Rep. 746, and Hax v. Caspar, 31 Fed. Rep. 499,) and as the question presented to me is wholly one of inconvenience amI not immoderate expense, whatever I might feel myself required to do if the right of removal seemed to mil clear, or under more serious circumstances, [go not perceive that I aIli nowj.ustified in grantipg
SOuTH CAROLINA BY. CO.
tion asked for. The petition for a temporary injunction is disallowed, without prejudice to a renewal of it under a new state of facts, and the restraining order is dissolved.
(Circuit Court, D. South Carolina.
June 9, 1892.)
DUTIES OF TRusTEES-GOOD FAITH-RAILROAD MORTGAGE.
Where the trustees in a railroad mortgage are empowered, under certain circumstances, to declare all the bonds secured thereby to be past due, they are bound to exercise this power with the utmost good faith, and only when approved by their honest, disinterested judgment, as the best thing for the interest of the bondholders.
2·. RAILROAD Where most of the lien holders of a railroad are urging a sale, and it appears that, in spite of the exercise of ability and great economy by a receiver during the past three years, no interest has been paid on any of the securities for a year. the property will be ordered sold, although the sale is opposed by one class of bond· holders.
In Equity. Bill by Frederick W. Bound against the South Carolina Railway Company and others for the foreclosure of the second Dlottgage thereon. Decree of sale. For former decisions rendered in the course of this litigation, see 43 Fed. Rep. 404, 46 Fed. Rep. 315,47 Fed. Rep. 30, and 50 Fed. Rep. 312. Mitchell & Smith, for complainant. Wheeler H. Peckham, Louis C. Ledyard, E. Ellory Anderson, I. W. Dilr loway, Smythe & Leo, S. LYrd, T. W. Bacon, and Asher D. Cohen, for defendants. SIMONTON, District Judge. This bill is filed in behalf of second mortgage bondholders of the South Carolina Railway Company, praying foredosure of that mortgage. The railroad property of the defendant was purchased at a sale ordered in this court, foreclosing a mortgage of the South Cai'oliua Railroad Company. This property is now covered by several liens. The first is the lien of certain bonds of the Louisville, Cincinnati & Charleston Railroad Company, (afterwards called the" South Carolina Railroad Company,") created by statute. This lien is now represented by the claim of Henry Thomas Coghlan, which has been reduced to a decree, and at present, with interest, is about $67,000. The next in rank is the lien ofa mortgage of the South Carolina Railroad Company to Walker and others, trustees. Of the bonds secured by this lien there are outstanding, past due, $253,825.31. Next comes the lien of the first mortgage of the South Carolina Railway Company securing bonds of the par value of $5,000,000. The interest on aU the bonds secured by these liens has been paid, except for the past year. The next.lien is that of the second mortgage bonds of.the South