KALAMAZOO WAGON' OO.·V. SNAVELY.
823
A case which 'further iiluetratEm this is cited by'hiro,-that of 'Webber v. H'UlYYllphreys, 5 DiU. 225,-where, after a judgment, against a corporation under the Missouri statute, a proceeding wasinstittlted to authorize stockholder; and it was held that this latter execution against would proceeding was not removable, ll.lthoughin it was be, naturally, an independent issue as to whether this party sought to ;becharged inexecution was or waS not a stockholderin the corporation. ,So; believing that this, case, although a new issue is interjected into it, is,1 looking at it in substance and not in form, simply a proceeding to carry into effect a decree already rendered in the state court, and whioh ,cannot be removed to this court, the motion to remand will be sustained.
KALAM",,-ZOOWAGONCO. V.SNAVELY
al.
eOtrcuit (Jourt, D. Ka1UJatJ.
.April 9, laaa.)
On Motion to Remand. W. A., Johnsm and A. Bergen, for the motion. t .J. -E. GiJl,patrick and Osborne &; MiUB, contra.
FOSTER, J. The plaintiff, in September, 1885, obtained judgment in the district court of Anderson county against M. B. Snavely for $2,046, and on this judgment issued execution. Defendant having no goods or execution was levied on ta tract of land in Anderson county, ,as the ptoperty of said judgment'debtor, by order of said plaintiff. Thereup'ort the plaintiff'brought suit in snid state court against said M. B. Snavely, Harry E. Snavely and others, for the purpose of subjecting said real estate to the payment of his judgment.. "He charges that said real estate waS purchased and paid for by said judgment debtor, and that 1\thisinsW,uce tbe deedwa:s made directly to said:Harry E. Snavely by the and David Lindsey, who are made defendants,and silid grantee for said rea,l eE\tate, thatrio'cohsideration was paid and thltti such purchase and transfer was so made and procured. by' the ilaidM'. B,'Snavely while he was llltgely in debt to variotlspartios, and
824
FEDERAL. REPORTER.
with the intent and purposeQf defrauding and hinderiIlg and· delaying his (}reditors in the collection. of their debts. The defendants Snaveleys deny in their answer the plaintiff's .allegations, and, further answering, deny that the consideration or any part thereof for said real estate was paid by said M. B. Snavely, but allege that the consideration therefor was :paid by Dl1 vid Snavely, the father of said Harry, and that his father ordered the deed made as it was, and that said transaction was made in good faith, and without the participation in any manner of said judgment debtor. The plaintiff is a citizen of the state of ,Michigan, and the for trial in defendants are all citizens of Kansas. When the case was the state court, at the September term, .1886, there was no one present to answer for the plaintiff, and the case was ordered dismissed for want of prosecution; but 011 the same day (September 9th) the attorney for plaintiff appeared and procured said order of dismissal set aside, and with his consent the case was set down for trial on the afternoon of the same day. When was called for.. trial thepJ.1l,intiff presented his petition arid bona for' removal of the (}a.se to this court, which application was by the court denjed, andsaid case dismissed. The plaintiff took out a transcript, filed the same in this court, and had the case dock. eted, and now defendants move to remand the same. The 'first objection to tpe removal is that, as the plaintiff had procured the dismissal the state court, and with his consent thecausehad'been Bet for trW, he coulct not then apply for removal. This ground is not tenable, as it has been frequently dooided .that the party lose his right of until he has actually'entered upon the· gives the right of removal." before or at trial. Section 3, act of the time atwnich said cause could be first tried, and before the trial OaseS, 100 U. S. ,473; Yulee v.Vose, 99 U. S. 545. The other objection, and the one principally relied on; is that this court has no jurisdiction of /the cause, for the reason that it is not an original and independent proceeding, but rather supplementary or auxiliary to the original suit.. If such was the nature Of this proceeding, the objection would be well takenj .but in my opipion such is not the case. ThisBuit ia an independent proceeding against new parties, and on. new issues. ,·It. is a suit in· eq\lity to reach andsu,bject the real estate claimed by a third party to the paymllut of the: plaintiff's judgment. The principal.defendant herein wasastrnnger to the other proceeding. The object and. purpose oLthe plaintilf in .setting up his judgment and execution against M. B.Snavely was to show his interest in the su,bjectmatter, and his right to contest the bona fides of the transaction. I calL see no substantial distinction of principle between this case and that of Bondumntv. Watson,lQ3 U. S. 281. There the judgment creditorlevied on the real elltateas the.prQpertyof his debtor, and was· about to seU. 'Watson,_ whose. title came through the judgment .Q.ehtor,claimed property, and contended that it WItS not liable to judg.ffi'ent, and brought suit in, the state court to enjoin the judgment credif the plaintiff in this case had proceeded to sep' itor from
SMYTHE
V.
NEW ORLEANS CANAL
&;
BANKING
CO.
825
the land on his execution, and H. E. Snavely had brought suit to enjoin him. In the case cited the supreme court held that the cause was removable; that it was a new and independent controversy between new parties. The case of Bank v. TtbrnbuU, 16 Wall. 190, to which my attention bas been called, was a statutory proceeding to try in a summary way the title to personal property seized on execution, and is referred to and distinguished in Bondurant v. WatBon, supra. See Stackhouse v. ZuntB, 15 Fed. Rep. 481. This question is discussed in Gaines v. Fuentes, 92 U. S. 10, and Barrow v. Hunton, 99 U. S. 80, and the distinction between dependent and auxiliary actions on the one hand, and independand origiUlll proceedings 011 the other, pointed out. This suit, in my jUdgment, comes under the latter class, and was removable under the act of 1875. Motion to remand denied.
SMYTHE v. NEW ORLEANS CANAL & BANKING Co. et aL {(H"",dt Oourt, E. D. LouiBiana. April 28, 1888 )
1.
EQUlTY-JURllSDlCTION-RECOVERY Oll' LAND-ADEQUATE REM",l.lY AT
LAw. . A bill to recover land, which shows a legal title in complainant, and alleges thafdefendants claim under a fictitious French grant, and that the officials of the land department have'tnade certain rulings adverse to his title which are without jurisdiction and void, shows no ground for equity jurisdiction, since such rulings might, if void, be as well disregarded at law as in equity
9.
The validity of complainant's legal title derived from the United States and the state depending on the question whether those under whom defendants claim had a sufficient title before the acquisitionof the territory of Orleans, there is no ground for the interference of equity. SAME-MULTIPLICITY Oll' SUITS.
8.
Equity will not take jurisdietion of a suit to recover land on the ground of the number of defendants and the multiplicity of suits required at law, it not appearing that these would be any more numerous than in equity, and the petitory action allowing the joinder of all persons in possession of the land and claiming under the same common title.
Farrar k KruttBchnitt, Girault Farrar, S. L. Gilmore, G. A. Breaux, Braughn, Buck, Dinkelspiel k .Hart, and G. L. Bright, for other defendants. PARDEE and BILLINGS, JJ. The suit is one to recover real estate, and the question to be considered is whether it is within the equity jurisdiction of the court. 'rhe complainant claims 2,295 acres of swamp lands in the south-eastern land district of Louisiana. He alleges patents
Co.
In Equity. J. Ad. Rozier and J. Ward Gurley, Jr., for complainant. H. O. MiUer and W. S. Pinney, for the New Orleans Canal & Banking