PATTEN fl. CILLEY.
837
PATTEN .,. CILLEY.
(No.1.) AprU 22, 1892.'
Oourt of .Appeals, First Oircuit..
1.
WRIT OF ERROR-DISMISSAL-FINAl, JUDGMENT-REFUSAL TO REMAND.
The denial of a motion to remand a cause to the state court is not a :flnal jud.srment. or order, and the circuit court of appeals has no jurisdiction in error in such stage of the case.
lao
SAME-:-C9'!lTS.
On dIsmissal of a writ of error, defendant In error is entitled to judgment for the,fQsts II-rising- on the to dismiss. Bf'adBtreet 00. v. Higgi.ns, 5 Sup. Ol; 880, 114 U. S. 262, followed.
Error to the Circuit Court of the United States for the District ofNew On of William A. Patten, the will of one Matilda P. Jenness waS adn.litted to probate in solemn form by the probate court of Merrimackc?unty, N. H. Horatio G. Cilley, one of the heirs at law of the appeal to the.supreme pourt of the state; and he after:wardstirocured the removal of the causa to the circuit court of the United Statesobthe ground that he was a citizen of Iowa, while plaintiff, Patten, was a citizen of New Hampshire. Patten's motion to remand the cause tqihe' stateCQurt was refused; and he brings error. Writ dismissed.. For former report, see 46 Fed. Rep. 892. Harry Bingham, John M. Mitchell, and Frank S. Streeter, for plaintiff in error. " . ..., WiUia·rilL. Foster, Harvey D. Hadlock, and Daniel Barnard, for defendant error. Before PUTNAM, Circuit Judge, and NELSON and WEBB, District Judges.
in
WEBB, District Judge. We think that there has been no final decicourt,and that this court has no jurisdiction in error sion in iIi the stage of the case. Under the decision of the supreme court in Bradstreet Co. v. Higgins, 114 U. S. 262, 5 Sup. Ct. Rep. 880, the defendant in error is entitled to a judgment for the costs arising on the motion <to dismiss. It is accordingly ordered that the writ of error be with costs for the defendant incident to the motion to dismiss, including any costs incurred by him in printing the record, and that a mandate issue forthwith. v.50F.no.5-22
FJIDERAL' REPORTER,' vol. 50.
CLARKE
v.
CENTRAL
;RA'ThROAD'&<BANKINGc8. bFNEW ,I.
OF GEORGIA
et al.
CEATRiLTRnSTCO. :.-.,-,
YORK
11.
CbMER etl:tl. .,
Court. 8. ;D. ",' ;;.'.':_,
Gea1'{1fa; 11:;
D. :&rayl4- 1892.)
t.RA:iLWUCOMl'ANIlCS"':ILLEGAL'CONSOLIDATIONS-TIU,NSJoEB OJ' S'l'OCK-RIGH'l' TO VOTE. '
The G,a. Co. ot North Ollrolina acquired by ,l!nrclulse a maJority otthe stock of the Cent. Jl.. ,po. of Georlt1a, whIch it, afterwards depoBiJ;ed wlththeCent. Trust Co. 'of New Ybrlt; 'and filially tr\msferred to the Tarminal Co:, a,.system oo.mpolled of sev· eral competitive lines of raiiroad. 'This company created a directory of the Cent. R. Co. to suit its purposes, wuich directory leased the Cent. R. R. to the R. & D. R. ,Co·· a cowpe1!ing ijne. lease, W!Wl enJotne4 as oontraryto Const. Ga. 18f7,art. 4,§ 2, par. 4, prohibitlngtlie merger of 'competing corPorations. The Injunction order directed the election of a new board of directors for the Cent. R. Co., and "p,',!'!',',OV,id" ell. thll<t the ,stock Of" ',t,hll'COmp,ny c,on,tI'O,lled, by e, Terminal Co. should not ' , be voteq in such election unless in good faith. ,The stock, in q , consisted of 42,000 shares, 40,000 of WhICh 'were those depOSIted by the <ill. Co. WIth tPe O.Trustpo. to: the,TerIl;lhlal Qo., an4 rem.inder, 2,200 ,shares, by thjl Co. from other, sonl7oos. The Co. and ilie Ga. Co. filed. a paper to the'Ci;nt. Trust Co. any right they might have to, .took.:: I#ld. no Interest In the stook appearing in the 'l'rust Co., other than that of a mere st.akeholder, .that the relinquishment in question did nol; entitle it to vote; , ': . The Cent. TrJ1st Co. was incapacitat¢.to vote such stock; by the foot that U 'Was trustee for a large ainount of of the Cent. R. Co., and, besides, ita charter apparently gives no such power. ., . The Cent: Trust Co. was unfit to be intrusted with the voting power in question because of the fact that its president, a financial expert, was engaged in an attempt to oUhe Cent.Il.. Co. with competing lines of railroad in the state of Georgia, and place them under the sole control of the Terminal Co., contrary to the oonstitution of the state. , ' . ',' . '! ,
lJ.SAM_INCAPAOIT'ATINGTlUJST.
3. :SAME.
.
,',
" ' ..
,
4. SAME-COlOn (BETWEBN mE STATES.', , . ' ' ' , '
The fact that tile charter of the Cent. R. Co., granted before the of the . constitution dfl$77, permitted munlcipaIcorpOrations to purchase Its stock, would not authoriZll corporation to llCqUire such stock after the adoption of the constitutIon. 6, :.:' , The fact tbatthe 'Permil1aHJo.hss 110 appreciable Interest In the' stock of the ..Ce.nt. R.: {fo." mortgage ,on,.tJ1e railroad execl1ted by the Terminal Co., does not remove the objecti()n to'Its voting in person 01' by representative in the election;of the ;ll'ecto1's of that railroad.! company, in view of the f8<lt that ,it hall large pecuniary interests in two directly competing lines railroad.
.s.
Comity between the states will not authorize a foreign rallroadoorpol"ation to ex, ercise powers within the state which a d,o\1lestic, corporatiop would not be permit... "",tedto exercise under the"constitutlon and ,policy of the state. ' CORpORATION&-AcQlltSITION 011' .
In Equity.
Bill by Rowena M. Clarke againE£the central Railroad
& Banking Company of Georgia and others, and bill by the Central Trust
Company of New York against H. M. Comer, receiver, and others. Motion by the Central Trust Company to modify an interlocutory decree. Motion denied. Butler, Stillman Hubbard and H. B. Tompkins, for the motion. Lawton Cunningham, Denmark, Adams & Adams, Daniel W. Rountree, Marion Erwin, and A. O. Bacon, opposed. SPEER, District Judge. It is essential to a clear understanding of the questions involved in this motion that a brief statement be made of the