FERRY
v.
TOWN OF WESTFIEIrD.
155
taken upon the snbject, I have deemed it best to la.y aside all tech. nical objections to the informal manner in which the matter has been presented, and t() ascertain, if possible, whether the defenda.ntshave -sustained their allegations by their proofs. After a careful examina· tion of the testimony furnished, I am of the opinion they have not sustained them. The most that has been done is to show that some of the officials of a rival company, with which the complainant has close business relations, have been friendly and active in giving him aid in the preparation of his case. I have never understood that a law· suit is·· of such an exclusive and sacred character that parties may not have the sympathies and accept the aid of associates and friends in carrying it on without subjecting themselves to the charge of col. lusion. 2. With regard to the second point, the learned counsel, ()n the ..argument, took even a wider range than the testimony, and much iime was spent in the discussion of questions that more appropri.ately belong to the final hearing. I do not propose to follow them now. Without intending to intimate any opinion on the merits of the controversy, it is sufficient for my present purpose to say, that, looking at the bill, answer, and affidavits, which furnish to the court the evidence on which to act on the question of a preliminary injunction, I nnd no circumstances existing and no facts developed which, in my judgment, authorize me to interfere, at this stage of the proceedings, by ordering such an injunction to issue. The motion is therefore denied, but without prejudice to the complainant to renew it if any subsequent acts of the defendants, before tinal hearing, should render its renewal necessary or proper.
TOWN OF WESTFIELD.
(Oircuit Court, W. D. Wisconsin. .JmUSDICTION-CITIZENSHIP.
December Term, 1883.) 657, followed, and cause remanded
Ferry v. Town of Merrimack, 18 FED. to state court.
REP.
Decision Remanding Cause to the circuit court of Sauk county. James G. Flanders, complainant's solicitor. H. W. Chynoweth, defendant's solicitor. BUNN, J. This cause was argued and submitted upon general demurrer to the complainant's bill. But in the examination of the case there appears upon the face of the bill a certain defect of jurisdiction, which will render it unnecessary to remand the cause to the state court. The suit is brought by William F. Ferry, a citizen of Illinois, against :the defendant, a citizen of Wisconsin, upon a claim arising upon a
156
FEDERAL REPORTER.
non-negotia.ble contract between the defendant town and the Chicago & Northwestern Railway Company, also a citizen of Wisconsin, and who assigned the claim to the plaintiff. The plaintiff is therefore suing upon a contract, his title to which is derived through a formal written, assignment from a resident of the same state with the de· fendant, and who was itself incorporated by virtue of section 1 of the act of March 3, 1875, to maintain a suit thereon in the federal 'court. The question was before us and decided in the case of the same plaintiff against the town of Merrimack, at the present term of this court, where the same defect appeared in the record. And we to refer to that decision for the grounds of the opinion that this court cannot take cognizance of such a case, whether originally brought here, or begun in the state court and afterwards removed to this cotirt on the application of the plaintiff. The case will be remanded to the circuit court of Sauk county, Wisconsin, from where it came to this court. HARLAN,
J., concurs.
SHARP
WHITESIDE
ann others.
WHITESIDE V. SHARP.1
lCircuit Court, E. D. 1'ennessee, 8. D. 1. JURISDICTION-REMOVAL OF GRANTED IN STATE COUHT.
October 1,1883.) PREUhHNARY INJUNCTION
CAUSE-DISSOJ,VING
A circuit court of the United States has no revisory power over the chancery court of a state, but when, before removal of a cause from the state cOllrt, an ex parte preliminary injunction has been granted, it may in a proper case dissolve such injunction.
2.
PHIVATE PROPERTY USED FOR PARK-CON'rnACT TO EXCLUDE PEHSOKS NOT BROUGHT BY CEHTAIN PARTy-TAX ON
The owner of what is known as the Point of Lookout mountain, a favorite resort on account of the extended view therefrom, who was also the owner of a chartered turnpike which was a regular toll road leading up the mountain nearly to the Point, inclosecl her gronnd as a park and charged an entrance fee from Visitors. SUbsequently she entered into a contract with a certain party, by the terms of which he was to carryall passengers over her turnpike instead of over another route leading to the Point, and was to have the exclusive privilege of bringing or conveying persons into the park. Complainant, who was engaged principally in the business of carrying visitors to and from the park, sought to enjoin the owner from refusing admission thereto to Buch parties carried there by him as might. tender the usual admission fee. Held, that the fact that the park had long been a popular resort for sight-seers, that an admission fee was charged, and that a tax was imposed by the state on the owner for the privilege of keeping a park, did not render the use to which the property was devoted a pubhc nse, or change the character of the property, and that the court could not invade' the rights of the owner and enjoin her lSee S. C" ante, 150.
