312
RDEBAL REPORTER,vOl.
53.
the 'state .court, and cannot remove his cause. ThIs objection Ie anSwered by the words of the removal act. It is not a question groWmg out of a conflict of jnrisdiction. There is no conflict of jUriSdiction. Indeed, the case is one in which the jurisdiction of the state and of the federal courts is concurrent. The case can bett1.ed irl either court, but the defendant has the privilege of trial lnthe'federal court. This privilege is secured upon certain condi· tioI1s;and none other. He must make and file his petition for ramovalllithe suit at the time or any time before he is required by the lawso! the state or the rule of the state court to answer or plead to the complaint or declaration, 'and shall file therewith his bond. It shall'then be the duty of the' state court to accept said petition and bOnd) and proceed no further in" said suit. The suit, goes over into the federal court inthe same plight as it left the state court. Dill Rem: Causes, § 150. In this case the defendant complied with the letter '(jf the law, fulfilled the' only. condition required' of him, and under, the act his cause 'was thereupon removed. The motion to remand' is refused.
eotirta
PRICE
T.
PANKHURST et aJ.
(Circuit Court of A:ppeals, Eighth CirCUit.
November 1.1, 1892.)
"
No.
135.
'"UJJger rule 10 of the circuit court of appeals, .(47 Fed Rep. vi., 1 C. O. A. w1llch requires a party excepting'to a charge to tile jury "to state disiliictly the several n'latters of law in such charge to which he excepts," aIld' provides that those rnatters only "shall be inserted in 'the bill of ex· ceptions and allowed," an exception to "the whole of said,lnstruction, and to eacb and "every part thereof,'! cannot be sustained, it of the propositions of law contained in sucbcharge are sound '
EXCEPTION TO CHARGE-CIRCUIT COURT 011' ;ApPEALS.
In Error to the Oircuit'Oourt of the United States for the Dishicll of Oolorado. At Law. Action by Theodore Pankhurst and Frederick O. Schroeder against Thomas D. Price, to recover possession of a portion of a certain 'mining claim. Verdict andjud/:,'1llent for plaintiffs. Defendantbriugs error. Affirmed. Hem'Y;W" JIobson arid Henry M. Teller, (pattison" & HobsOD and Teller, on the brief,) for in error. R. So Morrison and Samuel W. Jones, for defendant8 in error. Before OALDWELL and SANBORN, Circuit Judgefl, and SHiRAS, DistrictJudge. .
CALDWELL, Circuit Judge. This action ,was brought to recover the possession of a portion of the ''Puzzle'' lode mining claim. There were · verdict and judgment below for the plaintiffs, and the defendant sued out this writ of error. The only assignments of error relied on ai-abased on the charge of the court to the jury. The charge cov· ers ftvecltisely printed pages in the record, and deals with the law and facts of the case applicable to the varying claims of the parti811.
PRICE V. PANKHURST.
313
The bill of exceptions, after. reCiting the whole charge, concludes as follows: "To the giving of which said instruction the defendant specially objectFl and excepts, and prays that his exception be duly noted of record; said exceptionbeinlg to the whole of said ,instruction, and to each and every part thereof.", The charge contains several propositions of law, some of which are undoubtedly sound. ,The rule is well settled that, if the entire charge is excepted to in gross, and any portion of it is sound, the exception cannot be sustained. Beaver v. Taylor, 93 U. S. 46; Lincoln v. Claflin, 7 Wall. 132; Cooper v. Schlesinger, 111 U. S. 148. 4 Sup. Ct. Rep. 360; Burton v. Ferry Co., 114 U. S.474, 5 Sup. Ct. Rep. 960; Rogers v.MarshaJ, 1 Wall. 647; Moulor v. In· surance Co., 111 U. S. 337,4 Sup.Ct. Rep. 466; Blockv. Darling, 14.0 U. So 2:{S, 11 Sup. Ct. Rep. 832; McClellan v. Pyeatt, 4 U. S. App. 319, 1 C. C. A. 613, 50 Fed. Rep. 686. Upon the organization of this court, the practice.on this subject, as settled by the uniform decisions of the supreme court, was formulated into a rule, and adopted as a rule of practice of this court, in the following terms: "The judges of the circuit and distlict courts shall not allow any bill of exceptions which wall contain tIle, charge of the court at large to the jury, in trials at common law, upon an:r general exception to the whole of such charge. But the party excepting shall be required to state the several matters of law in such chm'ge to which he excepts, tllOse matters of law, aud those only, Shall be inserted in the bill of exceptiolUl, and allowed by the court," Rule 10, 47 F'ed. Rep, vi., 1 C. C. A. xiv.
This rule was designed to put an end to allowing bills of exceptions like the one in this ease. It matters not that the judge may be willing to consent to such a bill. He cannot waive the rule, so far as it relates to specific exceptions, if he desires to do so. The rule is not made for the judge's personal protection or benefit, but for the protection of suitors and the advancement of justice. It is the duty of the party excepting, to call the attention of the court distinctly to the parts of the charge he· excepts to, and this must be done before the cause is finally submitted to the jury, to the end that the court may have an opportunity to correct or explain the parts of the charge excepted to, if it seems proper to do so. The practice which it has been intimat.ed at the bar sometimes obtains of taking a general exception to the whole charge, with leave to specify particular exceptions after the trial, is a plafu violation of the letter and spirit of the rule. The party who conceives the charge is erroneous in any respect, and remains silent, will not be heard to point out the error after the trial; and a general exception to the whole charge, any part of which is good law, is equivalent to silence. The rule is mandatory. Its enforcement does not rest in the discretion of the lower court. Its f",nforcement is essential to the proper and intelligent administration of justice. It serves to correct hasty, inaccurate, or misleading expressions in the charge; it affords an opportunity for explanations and qualifications which might otherwise be overlooked, stnd sometimes, by removing the ground of exception, prevents further litigation. It is, of course, the duty of the court to allow the parties reasonable time and facilities for specifying exceptions. There is no <lccasion for haste in charging a jury. No part of the triaJ should M
FEDERAL REPC.UTER,
voL 53.
oon4ttetedmore deliberately and carefully, and no eourtwm refuse a pmoty'lf±meand opportunity to point out idistincdyhi8exeeptions to .befote .the case is '6irtally.given to the jury. He must be afforded 'oppott1ll'1ity to do· this i then,because. he is precluded ftom it aftpt"wa:rds. ':I'here being no error on the face of the record, error saved by the bill of exceptions, the judgment of the circtlit court is.affirmed. ;i i
MER<i:BANWS' NAT. B,A.NK et al. ,. OHAT1'ANOOGA. l;JONSr.rnUCTION CO.
. ,,"
Courl:,E.: D. Tennessee, S. D. ' :' ",' "'J'
.-',i'
1.. CnWP....,
is diverSe, and plaintiff is ,a resident of the distl.'lct, IUs not necessari that bEl shall also reside 1J1 the 'particular division of !tfieiUstridtwherethe, sultis brought. ',
CITIZENSHIP.
2. SAME-CREDITORS'BI'LLo-JUDGMiNT OF' STATE COURT.
lowed.' So
bill may be maintained in a federal court upon a judgment a differenH!tate from that in which the court sits. Stutz v. Fed. Rep. 537, U Sup. Ct. Rep. 530, and 189 U. S. 417, fol· OF PROCESS.
.
In ¢).'e41tors' suitln,a federal court,based on the judgment of a state court, it was claiinedthat the l8.tter judgment was .void for want of servo ice. It appearerl from the sheriff's return thatde'fendant (Chattanooga "Construction Company) was not found In his county, but there was Indorsedon. the 'process, as of the.day folIc wing the return,the following: ,Copy and process and all turther Service waived. The Chattano(,)ga Construction Co. of West Va. By B. J. Robertson, Pl'esident."'I'he record also shoWed t11at defendant company had recently built a raUroll.d through the county, and there was nothing to show that there :Was' any 1'llult: or failure' in "respect to defendant having been properly brought Inl;ocourt; Held, that the presumption was in favor of the action of state court, and it mw;t be held that defendant was properly 4. CREDITORS' :an.'t":"'EQUITY JURISDICTION. A. creditorS' bill brought against a railroad construction company, among other prayed an injunction, and the aPPointment of a receiver, and alleged ;that the same persons engaged In building the railroad organized the CQI'.structipn company; that nearly all the bonds of the railroad company \vere issued to it; t11at t!,le railroad company was Insolvent, and in _ the hands of, a rerwiver, and a decree of foreelosure had been rendered; that. the ,pro1J1oters of both companies 'lcquired control of large quantities of the, bonds; and in equity held the same as trustees for defendant; that they conlJpired to strip defenchtnt of i1:l:l ,assets, and in, pursuance therrof divp.rted large sums of money from its treasnry. and. pledged its bonds for dl'bts for which it was not liable; and that was Insolvent. Helrl, that these allegations were to sustain equity jurisdiction, although the creditors had not procured judgments as the basis of the suit.
In Equity. Bill by the :Merchants' National Bank and others against the ConstJ,'Uction Company for an injunction, the appointment of a receiver, and tor other relief. Decree for complainants. , Calhoun, 'Kmg & Spalding,J.B. 'Branham, Dabney & Fouche, and Barr & McAdoo,·for plaintiffs. Clark & Brown and Watkins & Bogle, for defendant.