GOULD 'V. MULLANPHY PLANING-MILL CO.
181
of - - - dollars, [givfng the amount,] and we assess the defendants' damages for the taking and detention thereof at one cent." You will take these two forms of verdict with you to your room, and use them in 'making up your verdict.
GOULD 'V. MULLANPHY PLANING-MILL
Co.
Court, E. D. Mis8ouri, E. D. September 28, 1887.) COURTS'- CONFLICTING STATE. AND FEDERAL JURISDICTION BENEFIT OF' CREDITOltB. ASSIGNMENT FOR
Pending proceedings in the state court under an assignment for the benefit of creditors, a creditor who was not a party to such. Proceedings, and .who made, brought was a non-resident of the state in which the assignment suit in the United States circuit court to determine the validity of a deM of trust made prior to the assignment, and covering a large amount of the assets assigned. The assignee had entered upon thll duties of his trust, but had taken no steps to contest the deed. Held that, as the question of the validity of the deed was one which was so entirely separate and distinct from those questions involved in the general proceedings that it cQul!i,properlybe eli/ninated therefrom without prejudice to such proceedings, it was one which the United States court had jurisdiction to determine.
On: Plea of Jurisdiction. Charles B. Stark, for complainant. WiUiam R. Walker. for respondents. MILLER, J., (orally.) In the case of Gould v. The Mullanphy PlaningMill Company, which was argued before us on Monday, we have come to the conclusion that the plea to the bill in the case 'is insufficient. The argument was that the plea set up the pendency of a proceeding in one of the state courts, which involved the same subject-matter that is in controversy in the present bill brought by Mr. Gould. These questions to a class of CRses which arise under the come up very often in laws of the state, for the purpose of administering estates of decedents, and administering assignments, and, in general terms, cases in which a fund is to be administered in a court of law of the state, and to sonie extent that is the case here. An assignment was made by the planing.mill company, and the assignee undertakes to administer the trust imposed upon him by the assignment, and although it is not alleged that he has filed an inventory, he has given bond, and it is ·probable that he has entered upon the trust devolving upon him by the assignment; But as far :lsthe case shows he has been. inclined to recognize the validity and existence of a prior deed of trust which covers a very large amount of the assets assigned to him. As he has not taken any steps to contest that deed of trust. and as this present bill, filed by Mr. Gould, one of the creditors interested under the assignment, does contest it, and declares H to be void or invalid for reasons set out ill the bill, it would seem that
182; he,,{lugh't, to have the ,right, and must hav.e the right, certainly in some court, to have an inquiry made into the validity of that deed of trust;' ashe n, large creditor }lnlier, the assignment., If the deed is heM void, It will increase his dividends very largely, and may Ul:ake his, debt entirely good, and if it is to be held valid it would diminish them. The argument that that is a matter which belongs to the state court in which the assignment is filed, is not conclusive or satisfactory. It very often happens in cases of the kind that I have alluded to that a single issue, a single question, can be eliminated from the general proceedings, (a question whieh might be adjudicated in the state court, if anybody were madethe proper parties,) th8,t makes such a distinct separate transaction, sudh a distinct principle of adjudication, that a party may bring suit ip aqother"court to have that guestion, settled. Especially is tAut, so of one' who is not a party to a proceeding in the state court. In this case Mr. Gould is no party to the proceeding in the state court. lIe has hot'been sl1ed. .' has not been served with any process. He is not so subjected to that court ,by any mode of proceeding that we know of. At least no such thing is stated either in the bill orin the plea. is tl;lerefore at liberty to exercise any of the :clg4ts which he Mr. may have to cantestthat deed of trust covering the propertyout of which he expects PI's 't,lebt ,to be made, and as he could go to any other Gourt in the state which hadcompl'ltentjurisdiction of the subject-matter, so, being a citizen of another state than the assignee and the other parties to this suit, he has a right to bring that suit and,havethat question determined in the courts of the United States, ., The inconvenience, it is said, of having two courts administering the same fund at the sam'e time has been considered in this class of cases, and it is not insuperable. This court .will .POnsider when it comes to render a decree, how, far it will go. It, is not.necessa.ry t(ldecide now that the court will take that fund out ortpe, hands of the assignee, ,or, the aS3ignee:being a party, will command .him to pay over to Mr. Gould any more or any less money than he 'would otherwise; hut it is perfectly competent for this court to make a decree; having all the parties before it,-having the assignee representing all the ,other creditors, and having the planing-mill company , and'he himself being, beforeit,-it is perfectly competent for this court to decide whether that original deed of trust is valid or void. When that decision it binds all that were parties to the suiti it therefore binds the. and the idea of conflicting orders of the court is not to .be conceived., When that decision. is inade, the assignee will file with the court,. w4ich it, is said has some kind of jurisdiction now ,-I don'tl+nowwhat it if'l,""';'he will file the decree of this court, holding that that deed of is valid, or holding that it is void and set it asideisnd tilat decree will bind the subsequent proceedings in the state court. in fund. For these reasons the plea is ,held to be bad, and is
He
COUNTY- OF .
V;. ?IONEER
GOLD MIN. CO.
183
COUNTY OF YUBAV. PIONEER GOLD MIN; Qo. and others. (Circuit Court, N. D·. Ca,lifornia. August l;l9,1887.) 1. REMOVAL OF CAUBES"-AcT OF MARCH
t.
S, 1887. Under section 1 of !tIle removal act, as amended by an act of March 3, 1887, the circuit court c<annot of a suit brought against a party in a district of which he is not an mhabitant; and section 2 does the removal of a suit brought in a state court against 8 party not an:inhabitant of the district.
SAME. .
Section 2 of said act, as amended, does not authorize the removal of a suit from a stiLte court to the United States circuit court, which could not have boen,originally brought.in said circuit court. ' . < St!uabtU by the Co'urt.). ri
SAWlER, J., (FmLD, Justice, and SABIN, J.,C(mcttmng.) The county ofYllba-a county of the state of. California-brought a suit inequity, in the superior court of Yuba county, against the Pioneer Gold Mining Compa,ny, and the Cleveland & Sierra Gold Mining Gompany,-two corporations,-both organized in the state of Nevada, and existing under the laws of that state. The defendant,thePioneer Gold Mining Company, .removed the case from the state court to the United States circuit courh under the act of :March 3,1887, on the ground that the complainant is a citizen of the :Qf .California, and the defendants are. citizens of the state of Nevada. The'question now presented, is, whether the act March 3,1887, removal of this case? and we are all of the opinion that it does not. So far as applicable to this question, the act of 1.8&7 ,.§ 1, provides that, "the circuit courts oithe United States shall ,have the courts of the several states,of all .original cogniutnce, concurrent. 13uits of: a. civil nature, at law, or in equity, * * * in which there shall be a controversy between. citizens of different states, * * * and no civil suit shall be brought before either of said courts, against any by any original' process of [doubtless, intended to be l 01: '] proceeding, in any other district tlwn that whereof he is an inhabitant." The habitation of ,a corporation, is: necessarily, in the state under whQse laws it It can have no other, and it is only recognized in states and countries, upon principles of comity. Clearly, under the express and pointed prohibitory clause quoted, under this section alone, could not have originally brought in this court j and it could not have original jurisdiction, or, in the language of the act, "original cognizance," because a slJ,it anywhere in the state of California, would not of the defendants is an inhabitant. be in the district whereof It is insisted on the partoUhe that the prohibitory Cll,tUlle is limited by the words, "original process of proceedingj" that