CHICAGO, I. &: N. 1'. R. CO. V. MLNNESOTA &: N. W. R. CO.
337
CHICAGO,
I. & N. P. R.
CO· .". MINNESOTA
& N. W. R.
CO.
(Oircuit Oourt, N. D. 10tlJa, E. D. November Term, 1886.)
1.
REMOVAL. OF CAUSE-CITIZENSHIP-FILING OF A1l.TICLES BY FOREIGN CORPORATION.
The tiling by a foreign corporation of its articles of incorporation with the sebretary of state of Iowa. as tequired by 18 Iowa Gen. Assem. e. 128, does not alter its status as a foreign corporation; and. in an action brought against such, a corporationby an Iowa corporation, the defendant may have the cause removed- from a state court to a United States circuit court.
2. SAME-CONSOLIDATION AFTER SUIT BROUGHT·
.Where a of a foreign with a domestic railroad bas not taken place till after suit brought as'ainst the foreign corporation by a domestic corporation, and the tiling of petition for removal. the consolIdation does not alter the foreign corporation's right to a removal of the cause. .
3. SAME-APPEAL TO STA'l'E SUPREME COURT.
An appeal tOR state supreme court, from an order allowing a tel;tlporary injunction, where the same is allowed upon the petition and an affidavit. bars , the right ofdefendant to remove the cause to a United States circuit court. IHe nO 01:ljection to the application of tb;eforegoing rule that petition for removal was filed promptly on the opemng day of the term, bemg the day on which' it could be presented to the court, since the statute provides that the party desiring to remove shall tile his petition before or at the term at which the case could first be tried. OF FILING PETITION. '
La,u& Harrnqn, for complainant. Jibulce &- uJon, for defendant.
In ,:Jjjq\lity.
On plea in abatement.
SHmAs, J. On the seventh day of July, 1886, the complainant filed sbill in equity in the district court of Howard county, Iowa, averring that the defendant had wrongfully taken possession of complainant's located and partly completed road-bed, over certain described parts of sectionsoflandS'in Howard county; and thebill prayed that a writ of injunction Illight be issued restraining defendant from interfering with said road-bed and grade; and also asked judgment for the damages alleged to have .been Caused by such action on part of defendant. On the tenth dayof July, 1886, an original notice in said' cause was served upon the defendant,citing the defendant to appear in said cause at the coming November term of said court; and also notifying defendant that on the thirteenth day of July, 18S8,anapplication for a temporary writ of injunctionwould'be made before the Hon. L. O. HATCH, judge of said dlStrictcourt. of Howard county. On the day named the application for the'temVdrnry writ was heard before the judge, both parties appearing by fbeirbounsel,'and an order was made directing the issuance of the writ The writ was thereupon iSsued and served, and on the day of July the·defendant gave notice of an appeal from the 'ordef'granting the writ to thesuprerne court of Iowa,' ahd filed a 8uper8edeas ponp... Otl'the rl.hlth day of November, 1886, the defendant filed in the distriei 'Howard'cotinty a :petition and bond for the removal of the v.29F.no.9-22 I.
338
FEDERAL REPORTER.
cause to the federal court, on the ground that the parties were citizens of different states, and the am.ount in controversy exceeded $500. The state court approved the bond,bu't made no order on the petition for having been filed in this court, the removal. A transcript of the, complainant pleads to the jurisdiction; averring that, in fact, the defendant corporation, which was originally created and organized under the laws of the state of Minnesota, has since become an Iowa corporation, and is therefore a citizen ofthe same state as the complainant. In support of this averment, His shown that the defendant, in pursuance of the provisions of chapter 128 of the Acts of the,Eighteenth ,General Assembly of the state of Iowa, filed with the secretary of state a copy of its articles of incorporation, whereby it became empowered to extend its all the powers, franc4ises, rights, priviroad into Iowa, and to leges, and liabilities of corporations organized in Iowa. This act,clothes foreign corporations with the named powers, rights, and liabilities, but it still leaves tbeth foreign corporations. It does not change their status in this particular, but only defines the powers and rights of the foreign coJ'poration as such. The fact,therefore, that the defendant, unde,rtheal1thprity of this act, filed its articles of incorporation with the secretary of state in Iowa, and extended its road into Iowa,does not constitute 'it ,a.n Iowa corporation, and does not, ' therefore, defeat the right of removal. !tis also urged, in support of the plea to the jurisdiction, that there has been, in fact, a consolidation between the Minnesota & Northwestern the latter being Company and the Dubuque & Northwestern an Iowa corporation; and that this consolidation makes but one company, existing under the laws of the state of Iowa and the state of Minnesota, thus bringing the case wit):lin the rule rec9gniJzed ·in Colglazier v. :LottkvUle, N. A. & a.Ry. 00.,22 Fed. Rep. 568; Pa.cific R. 00. v. M'i88ouri Pac. Ry. 00.· 23 Fed. Rep. 565, an,q cases therein cited. " ' Whether the had betw,een thecompllnies na:q:led amounts to a consolidation of the two'former corporations into a new corporation, owing its existence to the laws of I.owa and Minnesota" or .;)111y amounts to a consolidatio;n of the linel;! of railroad, by the sale of the property and stock of the Dubuque, & NQrthwestern to the,Minnesota & Northwestern, it is not material to determine. Whateverthe result of the consolidation was, it did not take place until after filing of the petition for removal in this cause, and therefore it has no effect upon the rights of the parties to this litigation. Tile suit was brought against the Minnesota & Northwestern Company, a corporation organiz.ed under the laws of the state of Minnesota, and there has been no substitution ofany other corporation as defendant in this cause. As the (}omplainant and defendant, when the suit was brought, and when the petition for removal was flIed, were corporations created under the laws of different states, the right of removal existed, so 41', 8.I:l the is dependent upon the verse citizenship of the parties. A more serious ground Qf. objection ,to the of this court arises from the fact that the defendant appeared to the motion for a tem-
CHICAGO, I. & N. P. c,R. CO. V. MINNESOTA & N. W. R. CO.
339
porary injxmction, was heard in opposition thereto, and took an appeal and 8uperl'ledeas to the l;Iupreme court of the state from the order granting the writ. . . In the Removal Chses, 100 U. S. 457, it was said that it is "clear that congress did not intend by the expression' before trial,' to allow a party to experim1lnt on his case in the state court, and, if he met with unex-' pected dIfficulties, stop the proceedings, and take the suit to another tribunal." . In Alley v. Nott, 111 U. S. 472; S. C. 4 Sup. Ct. Rep. 495; &harff v. Levy, 112 U. S. 711; S. C. 5 Sup. Ct. Rep. 360; and Gregoryv. Hartley, 742; S. C. 5 Sup. Ct. Rep. 743,-it is ruled that, after a h6l1ringin t4e state court upon a demurrer, which attacks the bill or petition on the ground that the facts therein stated do not constitute a cause of action, it is too late to apply for a removal, under the act of 1875, for the reason that, by such a demurrer, a decision deciding or affecting the merits of the controversy may be had. . In the .now under consideration the hearing was upon an application for a. of injunction. The writ was applied for and granted \JJlderthe provisions of section 3388 of the Code of Iowa, which enacts that "where the petition therefor, which must be supported by affidavit, that the plaintiff is entitled to the relief demanded, ands.uc4 relief, or any PA-ft thereof, consists in restraining the commission or continuance of some act which would produce great or irreparable injury to the plaintiff, * >II a temporary injunction may be granted to restrain such act." If, notice of the application for the temporary writ, the opposing party appears, and contests the issuance of the writ, is it not clear thatfjle court or required to examine the petition, and, upon the facts.therein averred, determine whether the petitioner is entitled to the relief Unless th.e facts averred in the petition set forth a cause of action, there coul<i .be no ground or right shown for iSi:luing an injunction, .llnd it should be refused. ZO'l'ger v. Township of Rapids, 36 Iowa; .175. . In effect, therefore, tbe application for a writ of injunction requires the court or judge to determine whether the allegations in the petition set forth a cause of action,-that is to say,grounds upon which the petitioner may be entitled to relief against the defendant, and where, as in this case,noe of the application for the writ is given to the defendant, and the defendant appears, and opposes the application, it is difficult to see wherein such a hearing differs from a hearing upon a demurrer to the sufficiency of the petition. Certainly, either proceeding may be used as a means of ascertaining the views of the court or judge upon the questions of law involved, and just as much reason exists why a party should not be permitted to experiment in the state court upon a hearing for an injunction as upon a .demurrer. Furthermore, it appears from the record in this cause that, upon the decision on the application for the writ of injunction, the defendant took an appeal thereon to the supreme court of the state, and filed a lfUper-
340'
8edeas bond, and has thus carried the question whether the petition on its face shows facts authorizing the issuance of a writ ofinjunction into the supreme court. After this action on part of defendant,and without withdrawing or abandoning the appeal, the defendant, by filing a petition for removal in the district court, claims that the jurisdiction of the state court is ended. The defendant, by its own act, invoked the jurisdiction of the state supreme court; and, if I understand the position of the appeal becounsel, it is claimed that defendant may still fore the state supreme court, for the purpose of reversing the ruling authorizing the issuance of the writ of injunction, and at the same time may have the case pending in this court, to be proceeded with as though such appeal had not been taken: In effect, the case would, in such event, be pending in two cou].'ts at one and the same time. This is not permissible. The. cause must be wholly in one court: or in the other. It cannot be split up into parts. To' be removable, the case, as an entirety, must be brought into this court. By. its own act, the defendant by appeal, the case into the had, befo.re petitioning supreme conrt,'and no action has been takenwhich has lawfully terminatedth'e jurisdiction of that COUrt; Under these circumstances, it must be held that the right of removal did not exist when the petition for removal was filed, and that the filing' thereof in the district court could notliave the effect of terminating the jurisdiction of the supreme court of the state over the case. On behalf of defendant, it is argued that the petition for removal was filed prorpptly on the opening day of the November term of the district court of Iloward county, and that this was the first day on which it could be presented to the court for action, and that, therefore, filing it on that day' preserves the right of the defendant to remove the cause. The statute provides that the party deEliring to remove a suit shall "file a petition in such suit in such state court before or at the term at which said cause could be first tried, and before trial," etc. In this caEle, therefore, there was no reason why defendant was compelled to wait until the first day of the term before filing his petition for removal. When notice of the pendency of the suit, and of the fact that an application for a temporary injunction was about to be. made, was served upon defendant, the latter could at once have filed its petition for removal, and could have objected to the judge acting upon the application for the injunction, on the ground that the jurisdiction of the state court was ended by the filing of the proper petition for removal. If that had been done, the complainant would have proceeded at its own risk, knowing that, if the cause was removable in fact, the filing of the petition and bond had terminated the jurisdiction of the state court. Instead, however, of pursuing this course, the defendant submitted to the jurisdiction of the state court; submitted the question whether the petition set forth a state of facts entitling complainant to relief, by way of injunction, to thejudgment of the district judge; and, the decision being adverse to it, the defendant then carried the question by appeal to the supreme court of the state, in which court this appeal is now pending. Having thus experi·
BISCHOFFSHEIM V. BROWN.
341
mented upon the merits of the. cause in the district court, and proposing, by persisting in the appeal, to further experiment upon the merits of the cause in the supreme court of the state, it is not open to defendant to also experiment in this court upon the merits of the same cause. Under the facts disclosed upon the record, therefore, it must be held that this court has not jurisdiction of this cause, but that the same continues in the courts of the state. The plea to the jurisdiction is therefore sustained.
BISCHOFFSHEIM
v.
BROWN
and others.
(Oircuit Oourt, 8· .D. New York. December 23, 1886.) 1. DISCOVERy-PRODUCTION OF DOCtTMENTS-REV.ST.
U. 8. 724. Rev. St.U. S. tl724; ,relative to the production of documents. does not ap' pIx to suits in equity. In equity such production, by One not summoned 88 a WItness. can ordinarily be compelled only by appropriate allegations in bill or cross-bill, upon the answer to which allegations a motion for production is based, and upon such motion the materialty of the evidence Bought forean be contrQverted.
2. SAME-WHEN MATERIAL.
The only issue between pla.intiff and defendants in a suit in equity was whether a trust fund, received by defendants under certain made . between plaintiff and some of the defendants and between plamtiff and a third party, was appropriated by them pursuant to the agreements. Held. that the production by plaintiff of books and documents relating to transactions prior to the date of the agreements would not be compelled.
In Equity. Joseph H. Choate and Benjamin H. Bristow, for plaintiff. Wayne Me Veagh, for defendants.
J. This is a motion on behalf of the defendants Seligman Brown tq compel production by the plaintiff for inspection of books, papers, and documents described in Exhibit A, annexed to moving papers. The proofs in the cause are being taken orally before an examiner, and certain witnesses for the plaintiff have testified that the papers and documents are under the control of the plaintiff. The papers specified in Exhibit A are not any particular book, document, or writing, but comprise all or a great number of several classes of papers, some of which may possibly be found, when examined to contain evidence advantageous to the defendant in controverting the plaintiff's case or supporting their own case. The motion seems to have been made and has been argued upon the theory that either party to a suit in equity may .call upon his adversary to exhibit for inspection anything and everything in writing under the latter's control which may assist the party who makes the call. The case of Gait v. North CaroUna Gold Amalgamating OJ., 9 Fed. Rep. 577, is cited as an authority in this direction. Not-withstanding this authority it must be held that such practice cannot WALLACE,
&;
