declare the forfeiture and resume the grant belongs to the United States, and can only be made effectual by an act of congress or a judicial proceeding. Schulenburg v. Harriman, 21 Wall. 44. The allegations of the bill demurred to make a case, therefore, in which complainant, being the equitable owner of the land, finds himself embarrassed by an apparent legal title in defendant,· and therefore entitled to relief in a court of equity. . . The demurrer to the bill is therefore overruled, with leave to defendan·t to answer within a reasonable time, to be filed by the court.
FALLS WIRE MANt1r'G
(Circuit Court,. E. D, MillJOy,ri. March, 1881.)
1. REMOVAL-COUlimn CLAm -AMOUNT IN DISPUTB -
Acrr 01' MARCH
The claim of theplain\Uf,and not the counter claim of the defendant, should fix the. amount in dispute, in determining the right to remove a cause from the state court under the act of March.a, 1875. c/'a'l'k8on v. Manion, 4 FBD. REF. 257, contra.-(ED.
Motion· to Remand. Lo-ui8 R. Tatum, for plaintiff. Noble If Orrick, for defendant. TREAT, D. J. The Ohio corporation, brought stIit in the state circuit court for less than $300, the defendants being citizens of Missouri. The defendants appeared (February 8th) and filed an answer and counter claim. The counter claim is based on an alleged contract in writing, for the non-perform.anee of which' the defendants have sustained damages (unliquidated) in the sum of $1,000. No written conitact '\"fas filed, or profert thereof made. an the following day the defendants filed a petition for :the removal of the cause to this court. Under the act of· March 8, 1875, We defendants, though citizens of Missouri, had a right to the removal, the plaintiff \ being a
FALLS WIRE MANUF'G
V ·. BRODERICK.
citizen of another state, provided the amount in exceeds $500. The plaintiff claIms less than $500, but thf'j defendants, by way of counter clajm, deIlland $1,000. The Missouri statute requires that tile written ,contract on which such counter claim is based be filed; and under the more recent decisions of the supreme court of Missouri, if not filed, a motion to dismiss, etc., w(;lUld But the I defendants having filed their answer on February 8th, but not the written contract, app(' red next day, February l)th, with etc" for removal to thfs court, an order for which was duly granted. The act of 1875 provides for the removal of a civilsuit "where the mat-. ter in dispute exceeds, exclusive of costs, thesulQ. or value of $500, · · · in which there shall be a controversy between citizens of different states." Hence the parties are within its,terms as to citizenship. Are they as to the arn:ount in dispute? . Judge has, recently held,. (Clarkson v. Manson") in a c,ase simill!'r to this, that, the plaintiff's demand was for $500, as .t1c defendant's counter claim for judgment over was for. more than $500, the cause was removable. If· be a true interpretllotion of the act, the door for remova,lsis wide ;open, whenever a defendant, for purposes of delay or otherwise, chooses to interpose a counter claim for more than the prescribed sllm; thus drawing intoUnited States courts thatrial, through the device ola counter claim, of any cause'in w/:J.ich the amopnt' claimed by pJaintiff, although, $50:0, is to be deter.6tl;J.er pand, that the origint,tl mined. It may. be, on demand in the state court is fora smail sum, while the xeal dispute involves thousands of dollars. Row shalla United States court avoid fraud on its, jut:isdictiop, on preserve the just right of removal 0:0 th,e 0Vher? , Must it await thefj.nal outcome, and then rende'rjudgmentas the facts may the terms of section 5 of, th6 act of 1875, by remanding or dismissing?" . An inquiry in thisq,a,se arises under sGctlonQ of said act, viz.: "That..the cirQuitcop.rt of the Cnitf.'d' c ; -, , ;,.' -, " ' .. "
'fReported in 4 FED, ,f57."
shall, in all suits removed under the provisions Of this act, proceed therein as if the suit had been originally commenced in said circuit court, and said proceedings had been taken in such suit in said circuit court as shall have been had therein in said state court prior to its removal." The purpose of this section is, obviously, that all proceedings after removal 'shall be as if the suit was originally brought inthe United States circuit court, and all had in the state court before removal shall stand on the same footing. Hence, when the answer and counter claim were filed, February 8th, in the state court without the alleged contract in writing, the plaintiff could have interposed amotion for dismissal; but, as the case was removed to this court before opportunity given for such motion, his right to do so still remains. Suppose such a motion interposed here and sustained, what would be the status of the case? Under sMtion f5 no dismissal of the case should be had, for the plaintiff would not be at fault.· If the counter claim is dismissed, and the case remanded after such dismissal, what effect would such dismissal have, tionally, it being rendered by a court that had thus decided its own want of jurisdiction in the premises? The act of congress (section 5) provides that when it shall appear to the United States circuit court that the dispute is not properly within its jurisdiction, it "shall proceed no further therein, but shall dismISS the suit, or remand it," etc. Hence, it seems that the first inquiry, on proper motion, is to ascertain whether on the papers, as transmitted to this court, it will remand, sustain a motion to dismiss the counterclaim, or will permit the defendants here to do what should have been done in the state court. Under the later rulings of the Missouri supreme court the counter claim is subject to dismissal on motion. If such a motion is made and granted, the case will have to be remanded. The anomalous position the case will then occupy in tho, state court cannot be avoided. The judgment of this. couttfor dismissal of counter claim, if its jurisdiction is to be determined, mayor may not prevent the state court from allowing the same to be re-in-
FALLS WIRE MANUp'a CO.
stated and the filing of the written contract. All this court will have decided is that the motion to dismiss the counterclaim is sustained, whereby it will have decided that it has no jurisdiction of the case, and that the same should be remanded at defendant's costs. If the motion to remand, in the present state of the record, is overruled, then,under section 5 of the act of 1875, it may appear, through proper motions, that this court has not properly jurisdiction oftha case, and the order to remand may hereafter be gtanted. The supreme court of Missouri has held that under the state practice act profert is not necessary; and that advantage of the non-filing of a written contract must be taken by motion. If a case is removed to this. court, without opportunity for making such a motion in the state court, and such motion is made here, will this court permit such contract to be filed here, and thus give the case here a position, jurisdictionally, different from what it had when removed? Can the removing party thus obtain jurisdiction, or escape the consequences of his position in the state court? Must he not abide by the record as it stood? Or may he assume that, as no motion to dismiss was made before removal, the case here has the same BtatuB as if the contract had been filed before removal? These difficulties are Ruggested with a view of determining the true meaning of the statute as to the amount in dispute. Under the act of 1789, the defendant, on entering his appearance, had to then file his petition for removal, and there is a. long line of decisions that the amount was to be determined by plaintiff's demand. Indeed, no other criterion could be had in the then state of the record. Since then various acts congress have granted permission to remove at other stages of the proceedings, but none has changed the rule as to the amount in dispute, or the rule by which it is to be ascertained, unless the adoption of the state practice has so done under the acts of 1872. The rules of law, as established before state practice as to counter claims existed, are familiar. Is it to be supposed that the uniform rulings of the United court were intended to be overturned, as to removals, v.6,no.7-42
by the act of 1872, the statutes and decisions concerning the removal of causes? While the practice acts of the state may prevail as to pleadings, etc., under the United States of 1872 they cannot .enlarge or change the United -States acts concerning removal of causes from state courts. The amount in dispute still to be what plaintiff claims, and not what by counter claim the defendant may demand. Motion to remand sustained.
WEAR 'V. MAYER.
(Cweuit CfJ'U/I't, E. D. Mi88OU1'i.
WRIT OF ERROR-NOTICE-REV. ST. § 4981.
A writ of error will not be allowed from the circuit to the district court, in bankruptcy proceedings, unless the plaintiff in error shall have given the notice required by of the Revised StatSAME-TRIAL WrfHoUT JURY.
A judgment cannot be reviewed in th!l Circuit court upon a writ of error, when the cause, by consent of the parties, was tried before the judge of the district court without a jury.-tEn.
Writ of Error. ,W. L. Scott and D. W. Wear, for plaintiff in error. . . B. Homer and L. B. Kellogg, for defendant in error. W MCCRARY, C.J. This was an action at law in the district .cpurt, brought by Mayer, as assignee in bankruptcy of one Wellington Stewart, to recover the value of certain gOOCE .alleged to have been obtained by plaintiff in error from Stew.art by way of fraudulent and illegal preference. A jury was waived, and by consent of parties the issues of fact were subto .the court, the finding and judgment were for the .assignee, .and the cause has been into this court by of error. The exceptions shows the findings of by the court in the nature of a. special verdict, and also
testinnny, to::;ether with th(} court's ruling