mine,the question either way according to its judgment, and not to ours. If we interfere to determine it in a,dvance., by preliminary injunction, we are plainly attempting to control the action of that court. It is no answer to say that we do not enjoin the court, but only the assignee. It may often that an injunction to restraiupublio officers, or private persons, if granted and enforced, will, in 'effeot, tie the hands of the oourt under whose orders they are to act. If, fo.t: example, a party subject to the jurisdiotion of a ,statEl is enjoined by a federal court from obeying the former, this is an interferenoe with the court as :orders 'of :well as with the individual. And the difficulty is J;lot less,ened-it is rather increased-by issuing the injunCtion in of the order of the state court, but after it has pos,l3ession of the subjeot. It that application for relief by injunction, upon the grounds stated in the bill, must be addressed to the state court, whioh has possession of the property, control over the several claimltnts, and power either to order or forbid delivefY to the assignee.
(Oircuit Oourt, D. Iowa. --,1880.)
RIGHT OF REMOVAL BY INTERVENOR.
Anyone coming into a case by petition of intervention has the same right of removal as an original party plaintifi or defendant.
PETITION FOR REMOVAL-AVER:\IENT OF CITIZENSHIP.
The petition for removal of such intervenor, if filed simultaneously with his petition of intervention, is sufficient if it aver the citizenship of the parties in the present tense; for, as to the intervenor, the filing of his petition of intervention is the commencement of the suit.
Motion to Remand. Action of ejectment, instituted in February, 1876, by the plaintiff, C. W. Burdick, against the defendant, John Peterson, in the district court of Winneshiek county, Iowa. The
BURDICK V. PETERSON.
defendant appeared in the state court and pleaded the general issue and the statute of limitations. The cause was by the state court continued at the February term, 1876, at the June term, 1876, at the October term, 1876, at the February term, 1877, and at the June term, 1877. At the October term, 1877, George O. Tollman had leave to file petition of intervention, whereby he alleged that be was the owner in fee.· simple of the land in controversy, having, after the commencement of this suit, purchased the same at master's sale under a decree of foreclosure. He avers that under said decree and s8;le he was. placed in possession of the land 'by the marshal,and Petersoh, ejected therefrom,about September 1, 1877. The petition of intervention alleged, in substance, that all the interest, and the possession, of the original defendant, Peterson, had, by 'Virtue of the foreclosure and sale, passed to the purchaser, leaving Peterson thereafter a nominal -party only. The petition of intervention was filed October 23, 1877. On the same day the intervenor (Tollman) filed his petition for removal of the cause to the circuit court of the United States. The petition is in the usual form, except that it avers the citizenship of the parties in the present tense. The removal was on the same day ordered by the state court. At the May term, 1880, of this court, the cause was tried, and resulted in a verdict for the defendant. A motion to set aside verdict, and for a new trial, was afterwards made by plaintiff, and is still pend. ing. More recently a motion was made by the plaintiff to set aside the judgment and remand the cause to the state court, upon the ground that "said judgment is void for want of jurisdiction in the court, the cause having been removed. from the state court, and it nowhere appearing that at the commencement of the suit the citizenship of the parties thereto was such as to authoriie the removal thereof a.nd. confer jurisdiction upon this court." Wright, Gatch et Wright,.for motion. Cha,s; A. Clark, amieus curia, contra. , MCCRARY, C.,J.. This pourt has several times held that the· petition for removal, or the record of the cause in the stat&.
court, under the act of 1875, must show the citizflnship of the parties at the time of the commencement of the suit.· Assuming the correctness of that general rule, we are to inquire, how does it affect this case? The removal here was upon the petition of Tollman,the :ntervenor, who becamf;} the owner of all the interest of the original defendant by a purchase at judicial sale, made this suit was brought and had been for some time pending, but before trial. The petition for removal was filed simultaneously with the petition of intervention, and the allegation is that the intervenor was a citizen of New York at the time of filing the petition, or, in other words; at the time he became a party to the suit. Of course, his citizenship before he became a party is unimportant, so far as this question is concerned. If he had the right to remove at all, it was manifestly sufficient to aver the citizenship of the parties at the time that right accrued; that is to say, at the time he became a party to the suit. The only question to be considered, therefore, is whether a party who in good faith becomes the owner of property pending the litigation concerning the title thereto, in a state court, and who, by proper means, makes himself a party to the cause in such court before trial, is entitled to the bep.efits of the provisions of the act of March 3, 1875, relating to the removal of causes. In other words, if such a party be a non-resident of the state, has he, when coming into the case by intervention, the same right of removal that he would have had if originally a party plaintiff or defendant? The statute provides that in any suit of a civil nature, brought in any state court, involving over $500, in which there shall be a controversy between citizens of different states, "either party may remove said suit into the oircuit court of the United States," etll. Section 2, Act of March 3, 1875. Can we, with propriety, limit the application of the words "either party" to the original plaintiff at;ld defendant? I think not. The act applies to all bona fide litigants in the state· courts, whether made parties, originally or not. ."Either party,"
-See Beede v. Ohuney, 5 FED. REP. 388; and Kaei8er v. Illinois Cent. R. Co., ante, 1.
whether plaintiff, defendant, or interveqm;" may remove a cause by showing the necessary f!iots. rt follows Irom this that as to an it is enough to show the citizenship of the parties at the time of his intervention, for, as to him, that is commencement or bringing of the suit. But the above-cited section of the act of 1875 further provides that when, in any suit mentioned in the section, "there shall be a controversy which is wholly between of different states, and which can be fully determined as between them, then either one or more of the plaintiff.a or defendants actually interested in such controversy may remove said suit to the circuit court of the United States for the proper district." This clause very clearly applies to a controversy between the original plaintiff and an intervenor who may be brought in in the course of the litigation and before trial. It is enongh if the controversy described is in the suit; there is no requirement that it shall be between the original parties. The intervenor became a defendant· within the meaning of' this clause, and since there was very clearly a controversy between him and the plaintiff, in which the original-defendant had no interest, and which 'COuld be fully determined a8 betweeJ:l them, the right of removal existed. . . If the petition for removal had not been filed until after the intervention, it would, upon the principle of the cases heretofore decided by this court, have been to aver the citizenship of the parties at the time of the intervention; but inasmuch as the petition to intervene and the petition for removal were 'filed at one and the same time, I am of the opinion that the use of. the present tense in the latter was suffiaient. It is not necessary to determine whether the motion is in time, (having been made after judgment,) since, independently of that question, it must be overruled. So ordered.
POOL, Administratrix, v.
C., B. & Q. R. Co.
(Ui1'/)uit Court, D. IotCa.
l"Vnder such circumstances,the mere facts that the successful party was not in fauIt, and tha,t the iVerdict was approved by the court, does 'not the case from the ti;lferenceof prejudice. '
. _ .: 1 . , ,.·
3. SAME-SAME-SAME. ,. ' ; Whllre 0: juror talks6utside the jtiryroom about, a case pendingsnd ;: .):Jef6i.e ,him, he gives' tht Clearest evidel1ce,that he is ,.; ,llon" iJpnartia} !\nd lJ,!lbiasedjuro,r.
'. '. ;flie 'of a juror tpat 'w!,litt he has thlJ,s said or heard ,; (} not' a1Iectea or influenced' 1m ijUdgment, is' not, 'unders\!ch brcum',("atllou.ces" to any l V c i g h t . ; ' , ' r ; ; ; ; ,.,,;,;, " j', ,! 'i ,i" ",' " qf, ,t,lW jPl'OrS eng!tged ,in. the' t;rial.,qf a GauSf! paWied several , d. kvenings ateards in the room one of the defendant's counsel, at the hoteiwnere some,''tnft) not all,.of saidiilrors were ·Ii Is1lQpll!i;ng.i -it appearedolthat tbe !cOunsel did itot kn<:rW'that' these j thlil p,artywhe? he:eonsented that:,hill: be ,thus "occupied, and that when he discovered t)lat 'act he studiously .,., 'kepHild'of trotn the 'room every evening until card party had ;a4lperaed. It appealied thatwhiltdhe case\vah i yet before .", one of ,t)1e jurors had talked freely and fully , ,wi,t,h a third party ,about thee&!1e! and badin /luch conversatipn " 'exprJssed himself to the prejudice of the plaintiff and the,plaintiff's ,cotitl'se1.' it also appeared that afier the jury had retired for consultation that this same juror moved that one of their party act as forel;Dafu,aJ;ld that then, upon illQtion, was appointed lJecretary. view of these circumstances, that the verdict should be set aside and a new trial granted.-rED
; ... .i
Motion for aNew Trial. Hagerman, McCrary ti; Hagerman, for plaintiff. H. H. Trimble and J. W. Blythe, for defendant. LOVE, D. J. This case was tried by jury at the last January term, in Keokuk. The jury gave a verdict for the defendant.