/
170
FEDERAL REPORTER.
BALTIMORE
& O. R.
CO. '/J. FORD.
COircuit Oourt, D. We8t Virginia. June 27, 1888.) ,
1.
,
REMOVAL OF CAUSES-CITIZENSHIP-CORPORATIONS-FOREIGN-BALTIMORE & OHIO RAILROAD COMPANY IN WEST VIRGINIA.
The Baltimore & Ohio Railroad Company is a Maryland corporation, and as such entitled to remove a cause commenced in a court of West Virginia to the federal circuit courtfor that district. Following Oounty Oourt v. Railroad 00., ante, 161. Where a. defendant. after flling proper petition and bond in the state court for removal of the case to the federal court, again appears in the latter court and makes motions in the case, among others for continuance, such appearance does not confer jurisdiction upon the state court. and the case, having been properly removed, can be tried only by the federal conrt.!
2.BAME-PROOEEDINGS IN STATE COURT-WAIVER OF REMOVAL.
8.
SAxE-TIME OF REMOVAL-WAIVER OF' OBJECTION:
Where a defendant has removed a cause from the state to the federal court, and plaintiff. at the time of appearing in the latter court, does not suggest to It that the time had elapsed within which a removal could properly be had, nor move. to remand to tbe state court. but demands a trial, he waives hia right to raise the question in answer to defendant's bill to restrain the further prosecution of the suit in the state conrt. 1
4..
BAME-INJUNOTION-AGAINST PROCEEDINGS IN STATE COURT.
A plaintUf ma} be enJoined from pressing the trial of a cause in the state court, where proper petition and' bond has been flIed for its removal to the federal court, and judgment rendered in such latter court. 1
In Equity. On applicati()n for an injunction restraining the prosecution of a suit in the state court. ,BOggC88 &: Hutchinsrni, for complainant. R. W. Monroe, for defendant. JACKSON, J., (orally.) The bill filed in this cause, by the Baltimore & Ohio Railroad Company shows that on the 24th day of April, 1880,
FrancisM. Ford, administrator of the estate of Joseph M. Ashby, deceased, commenced a suit in the circuit court of Preston county, in the .state of West Virginia, against this plaintiff, claiming damages $5,000; that afterwards, on the 3d day of June, 1881, the Baltimore & Ohio Company ,before a final trial of fhe same, filed a. petition in the circuit court of Preston county, accompanied with the proper bond, praying for the'removal of the said cause from that court into theoircuit court of the United States for this district; that on the 2d day of August, 1881, it filed in this court a copy of the record of the said suit, including all of the proceedings, as required by the act of congress, transferring the said suit from the state court into the United States court; that after the cause had been transferred to this court, the plaintiff, by his counsel, appeared from time to time, and upon two different occasions argued demurrers filed to the original and amended declarations, both of which demurrers were sustained, and an order was entered on the hearing of the second demurrer to the amended declaration dismissing the suit, and giving the 18ee Larson v. Cox, (Kan.) 18 Pac. Rep. - , and note.
BALTI¥.OBE&
o.
R.
V. FORD.
171
defendant, the Bnltimore& Ohio Company, ll. judgment for costs; that notwithstanding the case was transferred from the state to the federal court, wherein the same is exclusively cognizable, yet the plaintiff and his a.ttorney, in defiance of the jurisdiction, orders, and j udgmen t of this c,mrt, are threatening to press the trial of the cause in the state court, which would be injurious to the Baltimore & Ohio Railroad Company, and contrary to the act of congress. Upon this state of facts the bill prays that, inasmuch as the case has been adjudicated and det.ermined in the United States court, that the plaintiff in the action on the law side of the court be enjoined and prohibited from any and all proceedings in the circuit court of Preston county, or any other court of the state. To this bill the defendant files his answer, admitting that he had instituted the suit in his character of administrator in the circuit court of county, and that the Baltimore & Ohio Company had filed its petition, accompanied with the proper bond, praying for the removal of the same, and that no action was asked of or taken by the circuit court of Preston county upon the petition. The answer admits the judgment on the demurrer in the circuit court of the United States, but relies upon the fact "that no legal right existed to remove the cause into the circuit court of the United States at the time that it was removed," and claims that the appearance of the Baltimore & Ohio Company, from time to time, in the state court, was a waiver of their right to transfer the case. It also claims the Baltimore & Ohio Company to be a domestic and not a foreign corporation, and for these reasons asks that the preliminary injunction heretofore awarded be dissolved, and the bill be dismissed. To this answer exceptions were filed, but the court does not deem it material to notice them, inasmuch as the case turns upon the legal questions raised by the bill and answer, which can be disposed of upon the motion to dissolve the injunction, upon which the case is now heard. . As to the question whether the Baltimore & Ohio Railroad Company is a foreign or domestic corporation, this court has so often held that it is a foreign corporation, and as such entitled to sue in the United States court, that it is no longer considered an open question. Railroad Co. v. Supervisors, not reported; County Court v. Railroad Co., ante, 161; Railroad Co. v. Harris, 12 Wall. 65; Railroad eo. v. Koontz, 104 U. S. 5; Goodlett v. Railroad Co., 122 U. S. 391 et seq., 7 Sup. Ct. Rep. 1254. It is suggested in the answer that no action was taken by the circuit court of Preston county upon the petition and bond filed in that court by the Baltimore & Ohio Company, for the removal of the cause. In this connection it is claimed that, after the removal upon the part of the Baltimore & Ohio Company, its counsel appeared, from time to time, in the state court, and made motions in the case, among others, to continue it, and that for this reason it waived its right to be heard in this court. It was not important, nor was it necessary, for that court to act upon the petition and bond if it did not feel inclined to do so. Neither a want of action upon the part of that court, nor its refusal to remove the case, would divest thil:l court of jurisdiction. Whenever the proper and bond were filed pursuant to the act of congress, that court lost its
172
jurisdictions and this court acquired it when a transcript of the record was filed within the period prescribed by the act of congress, and that court had no right to proceed further with the case. The supreme court so held in the case of Insurance 00. v. Dunn, 19 Wall. 214, and in"Remaval CUses, 100 U. S. 457; Railroad 00. v. Mississippi, 102 U. S. 135; Kern v. lIuidekoper, 103 U. S. 485. Justice HARLAN, in delivering the opinion of the court in Railroad Co. v. Mississippi, said "that it was scarcely necessary to say that the railroad company did not lose its right to raise the question of jurisdiction by contesting the case upon its merits in the state court, after its application for the removal of the suit had been disregarded. It remained in the state court under protest as to the right of that court to proceed further in the suit, and there was nothing in the record to show that it waived its right to have the case removed to the federal court, and consented to proceed in the state court as if there had been no petition and bond for the removal." In this case the state court retained it against the wishes of the railroad company, and whatever part it took in the case was involuntary, and arose from necessity. It did nothing except to protect its right!' as far as it thought necessary, and there is nothing in the record that shows a waiver upon its part to have the case heard in the federal court. For this reason ""e are of opinion that nothing that transpired in the state court after dIe petition and bond were filed for remo\ral changed the legal status of the case, and therefore it the case being properly removed, that it can only be heard in the federal court. The next question raised by the answer is that the petition was not filed, under section 3 of the act of 1875, within the time prescribed by the act, before or at the term at which the case could be first tried. The record at law in this case, and which is filed as an exhibit, shows that, at the first term that this case came upon the docket of the state court, it stood upon a writ of inquiry, and no action of the court was asked for by either party. At the next term of the court, when the case was first called for trial, the petition and bond under the act of congress were filed. In the view the court takes of this case it is unnecessary to decide whether the case was triable or not at the term that it came upon the docket, upon the writ of inquiry, under the statutes of this state, for the reason that the record discloses that, after the case was transferred to the United States court, the plaintiff in that action appeared in that court, and did not suggest to it that the time had elapsed when the case could be properly removed, nor did he move to remand the case to the state court, but instead of that he demanded a trial in the United States court, and, upon a demurrer to his declaration, which was fully argued by counsel for both plaintiff and defendant, and considered by the court, the demurrer was sustained, after which the plaintiff took leave to amend his declaration, and, in pursuance of the leave granted him, filed in the court an amended declaration, to which the defendant demurred, and which was fully argued by counsel of both the plaintiff' and defendant, and again the court upon consideration sustained the demurrer, and entered an order dismissing the case upon the ground that the declaratlOn
BALTIMORE & O. R. CO. V. FORD.
173
was insufficient in law to maintain the action. This question was never raised until the filing of his answer to the bill of the railroad company seeking to restrain him from further prosecuting the suit in the state court. The action at law was commenced on the 24th day of April, 1880, and from that time Up to the filing of the answer in this case in January, 1887, there was never an intimation that the case had not been properly removed, much less a motion to remand. 'rhe supreme court in the case of French v. Hay, 22 Wall. 238, holds "that an objection of this character would not be listened to in that court; the point never having been made in the court below until three years after the removal was made, and when the testimony was all taken, and the case ready for hearing." This case has been pending near seven years, and the time when he could properly have raised that question has passed, and he should be held to have< waived that right. In the case of Ayers v. Watson, 113 U. S. 598,5 Sup. Ct. Rep. 641, Justice BRADLEY, in delivering the opinion of the court, says, "that the third section of the act of congress 1875 prescribes the mode of obtaining the removal, and the time in which it should be applied for. The language of this section is modal and formal. The directions, though obligatory, may, toa certain extent, be waived. " In this case there is no formal waiver of the requirements of this section, but all the acts of the party tend to show that the plaintiff in the action at law did not rely upon the position that he now takes in his defense to the suit in equity, -that the removal was not in time. In the same opinion J ustice LEY says "that a waiver may be expressed or implied." It would seem to the court that, under the circumstances of this case, common justice requires us to hold that this party by implication has waived the question raised by this answer, and for this reason we are of opinion that it is too late to avail himself of it now. Having thus disposed of the questions raised by the pleadings in the case, we are asked to enjoin the plaintiff in the action at law from further prosecuting his suit in the state court, from which the case was removed. As we have seen, the case was properly removed from the state court into the federal court, and, when removed, the jurisJiction of the state court terminated, and the federal court alone had exclusive jurisdiction. Any proposed action by the plaintiff in that court would, under the removal act, be illegal and void. We are therefore of opinion, under the authority of French v. Hay, 22 'Vall. 250, as also under the authority of the case of Dietzsch v. Huidekoper, 103 U. S. 494, to grant the relief prayed for. A decree will be passed refusing to dissolve the injunction, but perpetuating it, restraining and inhibiting Francis M. Ford, administrator of the estate of Joseph M. Ashby, deceased, the defendant in this cause, and the plaintiff in the action at law, his agents, attorneys, or servants, from the further prosecution of the suit at law in the circuit court of the county of Preston in this state. _
BACON
et al.
tJ. HENNESSEY.
(Otrcuit Court, D. Minne8ota.
June 27,1888.)
SPECIlI'IC PERFORMANCE-GOOD FAITH AND DILIGENCE OF COMPLAINANT-TRUSTS -FIDUCIARY RELATION.
Defendant took an assignment of, and had recorded. a contract for the sale of land to B. for $4.400. by which a warranty deed and payment were to be made June 22. 1882. time being made of the essence of the contract. For alleged imperfections in the record title. defendant refused to accept a deed or surrender the contract, and in 1885 the land was resold to R.. who had agreed to give B. au interest, and who removed the defects in the title. In 1886 defendant andR. made a compromise, hy which defendant obtained a half interest, and paid $2,750. he having previously paid but $100. The land was then worth $30,000. Held, that defendant could not be heard to claim that by reason of the contract and assignment thereof B. sustained to him a fiduciary relation, and. R. having knowledge thereof, the half held by B. aUG R. was held in trust for defendant.
In Equity. Actiou for partition. Lusk Jc Bunn, and Rogers Jc Hadley, for plaintiffs. H. a. McCarty and D. H. Lawler, for defendant. BREWER, J. This is an action of partition, commenced upon the basis of a legal title, which stood part in the plaintiffs and part in the defendant. Thereupon the defendant filed a cross-bill alleging that while the legal title to part of the property stood in the original plaintiffs, equitably the defendant owned it a\l; and he seeks a decree quieting his title. On this qross-bill issue was joined, testimony taken, and the case is now submitted upon the pleadings and proofs. The facts developed are as follows: In March, 1882, one Chittenden was the owner of the land in controversy. He made a contract of sale with G. V. Bacon, one of the parties to this suit, by which he llgreed to sell the land to Bacon for $4,400, and to make a warranty deed on or before June 22, 1882, with the further stipulation that Bacon was to pay at the time the deed was delivered, and that time was to be of the essence of the contract. Bacon paid nothing, but thereafter assigned his contract to Hennessey for $500,-$100 of which was paid, the balance to be paid when the title was completed. When the deed was tendered, during the summer or early fall of 1882, Hennessey made some objections to the title of Chittenden, some of which were good; the title of record not appearing perfeet, though it may in fact have been so. It so ran along from 1882 to 1885, Hennessey having paid but $100, and having placed his contract on record, which put a clamp upon the property, and tied it up. Both Chittenden and Bacon insisted that he should take the title as tendered, or else throw up his contract,bJlt he refused to do either. Wearied with delay, Chittenden and his agent, Bacon, went to work to find other purchaser, and persuaded Mr. Rogers to buy the land, and pay substantially the price named in the original contract. Chittenden made his deed, and received his money. Rogers took the deed, and cleared ')ff the imperfections in the title; Bacon being the agent who was instru-
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