T. ATLANTA &e,F. R, CO. eta!.
, (Circuit 06\\1'1:, N. D.
, In.a,sWtht'onght lti'o. State court by 11 citizen of the state agnlnst · , '111so Ii. citizen of the li'tate, setting upcertaln claims and lif\1l$, WIlS made a party defendant. 1}r,illg of another state, the, trustee removed the cause on the 'gl'ourid of a separate controversy between it and plaintUI. Held that, as judgment determining the rights an(I fixing the priority of liens of plaintitralld the., trustee would of neoessity be against the company, there was no separ!lte controversy between the former two to justify a remoVl11 under the act of 1883, § 2, cl. .8. Ayres v. Wiswall, 5 Sup. Ct. Rep. W, 112U. S. 187: Deposit Co. Huntington, 6 Sup. Ct. Rep. 733, 111 U. S. 280jYoungv. Parker's Adm'r, 10 Sup. Ct; i Rep. 75, 132 U. S. 267; 12SUIl. Ct. Rep. 720, 144 U. S.533;and In re San anA. P. Ry. 00., 44 Fed. Rep. 145,-followed.
InEquity. Suit in, the state court by E. W. Marsh and others a.ga.inst 'the' Atlanta & 'Florida Railroad Company. The Central 'lTustOompany of New York was, by order of the court, made a pal'ty defendUnt,a:nd thereupon removed cause to this court, on the ground of Ii. separable controversy. Heard on motion to remand. Granted., ' Payne & Tye, for complainant. C.Z. Bla,J()ck, for defendant Atlanta F. R. Co. I;[. B.Tompkins, for.defendant Central Trust Co. of New York.
DistIjet .Judge. 1. This is a motion to remand. The is to court by the Central. Trust Company of New York, on ,the ground that there is a separable controversy between it and other parties to the suit. The petition for removal, which state'court, sets out: was ,:filed in
"Petitionel1' hilS with each, ot the complainants lti said suit distinct from the other; and petitioner further shows that it also has , dispute the said Atlanta & Florida Railroad Oompany, a party defendant m said cause, Which Is separa,hle and distinct from any question of dispute that petitioner may have with the parties who are nominally complalnanrs lnsaid cause."
"On the'argumentof the case, however,the separable controversy insisted upon is between E. W. Marsh, who is a party complainant, ana the Central Trus1;Company of New York, made, by order of the s1;&te court, party defendant. In themidst of other business, the court has not had opportunity to prepare any elaborate opinion, expressive of the views entertained On the authority, however, of Ayres v. on the question 'Wiswall, 112 U. S. 187,5. Sup. Ct. Rep. 90; Safe Deposit Co. v. Hun· tington, 117 U. S. 280, 6 Sup. Ct. Rep. 733; Young v. Parker's Adm'r, '132 U. So 267, 10 Sup, Ot.Rep. 75; Sharon v. Tucker, 144 U. S. 533, 12 Sup. Ct. Rep. 720; and In re San Antonio &A. P. Ry. Co., 44 Fed. Rep. 145,-the court must determine that no separable controversy exists in this case, such as would justify removal under the third clause of section 2 of the act of August, 1888.
BADARACCO 'V. CERF.
The removal cases in 100 U. S. 457, and Foster v. Railway Co., 47 Fed. Rep. 379, come nearer to authority for defendant than any of the cases cited and relied on by counsel for the Central Trust Oompany, but in my judgment those cases are clearly distinguishable from this case. I am wholly unable to see how any controversy that may exist between the Oentral Trust Oompany and E. W; Marsh, either as to his claim by note against the Railroad Company as to the tax fi. fa. assigned to him, or otherwise, and the Central Trust Company, representing the bondholders, can be determined without the presence of the railroad company. Any judgment fixing and determining the rights of either Marsh or the trust company must involve the railroad company as a party, for in either case the jlldgment fixing the liability and priority of lien must be against it. The case, in my judgment, is controlled absolutely by the authorities first cited, and against the trust company on the question of separability. 2. It is unnecessary, in this view of the case, to determine whether or not the petition of removal is filed in time. If this were not true, a question of proper practice under the state law, not yet settled by the supreme court of the state, would arise. No opinion is expressed, therefore, as to whether the cause was removed in time, as it be remanded to the state court, on the ground that no separable controversy is shown such as would justify its removal An order remanding the case wiU·be entered.
BADARACCO v. CERF et aI. (Circuit Court of Appeals, Eighth Circuit. November 14, 1892.)
FEDERAL COURTS-APPELLATE JURISDICTION-CIRCUIT COURT OF ApPEAl,S.
By Act March 3, 1891, the entire federal appellate jurisdiction is divided between the supreme court and the circuit courts of appeals, by enumerating the classes of cases wherein the judgment of each court shall be final. McLish v. Roff, 12 Sup. Ct. Rep. 141 U. S. 661, followed. Cases wherein the judgment of the circuit court of appeals is "final," within the meaning of Act March 3, 1891, § 15, giving the right of appeal 110 such court from territorial supreme courts in such cases, are only those enumerated in the first clause of section 6; and no appeal to the circuit court of appeals lies in a case not there enumerated, although an appeal to the supreme court is denied by section 6, the amount in controversy .being less than $1,000. Mining Co. v. Ripley, 53 Fed. Rep. 7, apvlied.
2. SAME-FINAl, JUDGMENTS-REVIEW OF DECISIONS OF TERRITORIAL COURTS.
In Error to the Supreme Oourt of the Territory of New Mexico. Dismissed. W. B. Ohilders, for plaintiff in error. Before CALDWELL and SANBORN, Oircuit Judges, and SHIRAS, District Judge. SHIRAS, District Judge. This case comes before us on a writ of error to the supreme court of the territory of New Mexico. The ac-