456
FEDERAL REPORTER,
vol. 44.
. eallowed interest thereon. It appears that no salaries had been fixed b by their company; that it had an empty treasury, and was not collecting', or attempting to collect, its stock subscribed, except to a very limited extent, and that it was largely an experimental and inflated enterprise, which they must have known, so that the principal is a full satisfaction for debts of so little merit. Interest will be allowed to the other creditors.· The clerk may look to the competent testimony on file, and take such other as he deems necessary and proper in his investi-
CHATTANOOGA, R. & C. R. Co. V. CINCINNATI, N. O. & T. P. Ry. CO. et (Oircuit Oourt, E. D. Tennessee, S. D. December 26, 1890.) lc.
at.
.
Under Act Congo Aug. 18, 1888, c. 866, § 8, which provides that, when a proper bond.slid petition for removal are filed, "it shall be the duty of the state court to accept said petition and bond, and proceed no further in the case," where tbe record as certified shows that such bond and petition were filed, it will be presumed, on motion to remand, that they were duly accepted by the state court, though . no order of removal was entered. Sum-SEPARABLE CONTROVERSY.
REMOVAL Ol!' CAUSES-MoTION TO REMAND-PRESUMPTION.
2. .
Under sectiQn 2, Id., whioh provides that where there is in any removable suit a .controversy wholly between citizens of different states, and which can' be deter,mined, as between them, either one or more of the defendants actually interested therein may remove the suit, a suit in which the only controversy is between the complainant and one of the defendants may be removed by such defendant, though other persons, who have no interest in the suit, have been improperly joined as parties defendant.
8., CARRIERS-TRAl!'l!'IO CONTRACT-RESCISSION. A contract between railroad companies by which one company allows the other to use its freight depot and tral1ks in consideration of rent at a fixed rate per ton and per car, without any prOVision as to the length of time the contract is to remain in force, may be rescinded by either party at any time, on reasonable notice.
'In Equity. On motion to remand and oninotion to dissolve tion. McAdoo &: Barr and Olark &: Brown, for complainant. Lewis Shepherd, for defendants.
KEY, J. This suit was commenced in the chancery court of the state, and arises from a contract made by complainant and defendant Cincinnati, New Orleans & 'Texas Pacific Railway Company, June 28, 1888. The second paragraph of said contract says: "For the use of the freight depot of the Cincinnati. New Orleans & Texas Pacific Company. the Chattanooga. Rome & Columbus Company will pay at the rate of 25 cents per ton for all freight received and d.elivered at the depot; this payment to include all services for unloading. delivering. and way-billing, .lIond collecting the freight charges on merchandise of the Chattanooga. Rome & Columbus Company passing through the ffl'ight-hollse of the Cincinnati. New Orleans & Texas Pacific Company. For the use of the Cincinnati, New 'Orleans & Pacific tracks for bulk freight, the Chattanooga. Home &; 'Columbus Company will pay the sum of 75 cents per car on all freights deliv· ered,on the bulk tracks of the Cincinnati, New Ol'1eans & Texas Pacific Com· .pany:. '(.
CHATTAJ\'OOGA, It. & C. R. CO. V. CINCHiJ\'ATI, 1\'. O. & T. P. BY. CO.
On the 10th of September, 1890, the Cincinnati, New Orleans & Texas Pacific Railway Company gave a written notice to complainant that, "commencing Monday, October H, 18\-)0, the foregoing contract should cease and determine." On the last-mentioned day a bill was filed, asking to enjoin the said defendant from terminating this contract by refusing to comply with its terms, for the reason, as is alleged, that the contract is a PBrmanent one and can only be dissolved or ended by mutual consent of the parties thereto. A temporary injunction was granted, and the Cincinnati, New Orleans & Texas Pacific Railway Company filell its petition, affidavit, and bond in the state court for removal into this court', and the cause is before us upon a motion to remand upon the part of complainant's solicitors, and the motion to dissolve the injunction on half of defendants. . The motion to remand is predicated upon two grounds: First, because the bond and petition filed for removing the cause were not ae.. cepted, and no order for transferring the cause to this court was made by the state court; second, because the cause is not removable, and this court has no jurisdiction because it is not a separable controversy. There appears in the record of the case filed here no order of the state court in respect to the removal of the cause. Section 3, c. 866, Act Aug. 13, 1888, (St. at Large, 1888-89, p. 435,) provides that, whenever any party entitled to remove a suit, except in certain cases, of which this suit is not one, may desire to remove such suit from a state court to the circuit court of the United States, he may make and file a petition in. such suit in such state court, for the removal of such suit into the cuit court, and shall make and file therewith the bond required. "It shall then be the duty of the state court to accept said petition and bond, and proceed no further in the case." The state court has but two things to do. Those are to accept the bond and petition. and to take no further step in the case. There is nothing in the law requiring the state court to make an order of removal. Its only affirmative act is to accept the petition and bond. We find in this record, as from the state court, a copy of the petition and bond for the removal of the cause, and that they were filed in said court October 22, 1890. The presumption of Jaw is, under this state of the record, that the state court did its duty, and accepted the petition and bond. An order of the state court would not remove the cause if it be not removable, nor would it prevent its removal if the petition shows it to be removable. The other question upon this branch of the controversy is whether this is a case that can be removed. The complainant is a corporation created and existing by authority of the state of Georgia. The defendants are the Cincinnati, New Orleans & Texas Pacific Railway Company, a corporation of the state of Ohio; the Alabama Great Southern Railroad Company, a corporation of the st.ate of Alabama; the Cincinnati SQuthem .Railway, an alleged corporation of Ohio; and the East Tennessee, Virginia & Georgia Railway Company, a corporation of Tennessee. There are no parties to this contract in controversy but complainant and the Cincinnati, New Orleans & Texas Pacific Railway Company.
FEDERAL .REPORTER ,
voL 44.
rlJeCincinnati. Southern,as the bill shows, has not the slightest inin it or control over it. His not a proper party to the suit, and appear no reason for making it a party, unless the purpose was jurisdiction of the court. So far as the other parties to afe concerned, t11ey' are all corporations of different states, and of states different from the Cincinnati, New Orleans & Texas Pacific Rail'The second section of the act of August 13, 1888, alsays: . when in any suit mentioned in this section there shall be acontrove11lY ,which.is wholly betweencitizens of different states, and which can be determined, as between them, then either one or more of the dpfendants actuBJIi'ihterl'sted in such controversy may remo\ e said suit into the circuit court' bf the United States for the proper district." and only controversy here is between the' complainant and New Orleans & Texas Pacific Railway Company. None qf,tb:eQtll6l'· defendants have any inte1'est in the litigation. They are not .a.ndarejm.properly joined as such. 'I question JlS to whether ,there be a separuhlecOntroversy does not cannot arise, because ,the controversy is between but two .par.· ,m.otion to remand is overruled. : U8 to tbe motion of the defendant Cincinnati, New OrPacific Railway Company to dissolve the injunct.ion. the construction to be given the contract.' Comthat the contract is permanent and perpetual, and can ,tt'.r.minatedby the mutual consent of the parties; or, if it be not .apeh a. contract, it is one .rnnninglrom year to year. The question has beeil settled by Judge JACKSON of this circuit; in the case of Ohio R. 00. v. Ohio &M. R. 00., in the southern district of Ohjoji(QO opinion filed.) The Baltimore & Ohio Company did an press lmsiness. On the 29th day of oeptember, 1884, it made an agreeD)61)t, with the Ohio & Mississippi Company that the last-named companyahQuld furnish to the other company cars and otber facilities for the conclucting,and carrying on the express business on the lines of the Ohio & iMississippi Company. .The contract made no provision as to how long .itshould continue, or how it should be terminated. In this respect it was like the one in controversy here. Tberewas the following marked difference.. however: The tenth paragraph of the contract between the parties in the Ohio suit stipulated that. "'The said Ohio & Mississippi Railway Company, in consideration of the covenflnts and conditions herein contained, duth further agree with the said 80 far as it lawfully may, that it will contractrelatlve to the forwarding of expreRs matter over its not !laid roadwitbimy other railroad or .express company, but that the said Balthtlore & Ohio Railroad CompanY shan have the exclusive right to forward express 'matteroter the said railruad of the party of the second part." I
:;A{terthe foregoing contract had been in operation some years, and the Baltimore & Ohio Railroad Company had establisheda!1d Apened offices all alqngthe lines.of the Ohio & Missis-
'LOVETT '17. PRENTIcE;
sippi Company, the latter company threatened to termtna.te the and took action to that end. The Baltimore & Ohio Company; tHe<i a, I bill to enjoin the other company from disr,egarding and terminating its'l said contract by withdrawing its cars and other iacilities from the I plainant in that bill, and the express' matter to some other 'cbrn'; pany. There is no clause in the contract under our consideration sitoilar or equivalent to the paragraph quoted from the Ohio case, and yet' that bill, presenting a case than the one here, was dismi8sed ' upon demurrer alter able and elaborate argument. If that bill couId} not be sustained, certainly this cannot be, unless it be, as maintained" on complainant's behalf, that this contract gives an interest in realty by" allowing the use of the depot and tracks. It is clear that the contract;1 gives no such interest. Complainant under. it has no possession of the I depot or control of the tracks. ." I conclude, therefore, that the injunction should be dissolved; .buttiri I order that complainant may have opportunity to meet the exil1:enciesofl its situation, this dissolution will not go into effect until the 1st day 'of' March next, at which date the dissolution will become absolute. ,.
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LoVETTet .al. '17. PRENTICE.
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(Co£rcuU CO'U"rt, D. Mo£nnesota. December lU, 1l1l1O.) ,
QuIETING
1n a suit by the owners of separate 10tB. wboderive title from a common grintor,: to quiet their title as against a defendant who,claims to own all the lots. the amoil'nt., In controversy is the value of all the lots owned by the complainants, and notthei value of separate lots of each. . 0 , 0 , '
IN CONTROVEl\SY.
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1
oj
In Equity. The complainants, Charles E. I,ovett, Frank R. Webber, C. A. Stew'; art,and R. T. Lewis, allege that they are severally the owners itl fee certain tracts of land situate in St. Louis coUrity, state of Minnesota; in' Duluth proper, third division, according to the recorded plat . The particular lot owned by each plaintiff is given, and it is furth,er stated that the lands described area part of a certain tract described a'cto the government survey, which had beE'n laid out h\to town lots, which are owned by 700 diflerimt persons. That an unJivided" one-half interest of eaeh of the said 'lots is Claimed and owned in sev- I eraltyunder conveyances as a cpmmonsource of) title. That Gilman acquired title to the said undivided one-halt' inter.est under a deed from Benjamin Armstrong and wife, dated August30 l 1864.' That Armstrong and wife, 11, 1856, executed and , delivered a deed to the dt:fendant, F'rederickPreritice, which was duly recorned, of certain real estate described and boun'ded as follows: ,. "Oneu'ntlividell i of all the following descfil,>ed piece or parcel of land, ,sit-: nate intlie' county of St. LOUis, and territory of Miuuellota, and known and 0
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