*'l48
FEDERAL BEPORTER.
YOUNG
v.
GRAND '!'RUNK
By.
OF CANADA.
(Circuit (Jourt, E. D. Wisconsin. 1. PRACTICE-CONSOLIDATION-DISCONTINUANCE.
1881.)
Van Dyke t1; Van Dyke, for plaintiff. G. W. Hazelton, for defendant. DYER, D. J. Three suits were commenced in this court by the above-named plaintiff against the defendant company to recover damages for alleged delay in the transportation of grain which was shipped by thE! plaintiff over the defendant's road and consigned to Liverpool. The complaints in the several actions were substantially alike, except that the contracts of shipment were alleged to have been made at different times, thus showing that the several shipments were distinct and iudependent transactions, each constituting a sepa· rate cause of action. The defences to the actions disclosed by the answers of the defendant were similar. A rnotion was made by coun· sel for defendant to consolidate the cases; and as they are of like nature, and as it appeared reasonable so to do, the court ordered the actions consolidated, and such an order was entered. Rev. St. § 921. The plaintiff now rrloves for leave to discontinue two of the cases. This motion is opposed, and is now to be determined. It is contended-First, that as the three' suits have been, by the order of the court, merged into on'e, there are no longer two separate. cases that can be discontinued. Strictly speaking, this is true; but although the present· motion, in form, is one to discontinue two of the actions as originally entitled, I think it may properly be treated as a motion to discontinue as to two of the causes of action in the present consolidated action. And so the question really is, has the plaintiff a right to dismiss his suit as to two of the causes of action upon which he originally commenced independent actions? There can be no doubt that the present consolidated action consists of independent parts or causes of action. Each shipment of grain and each contract upon which the shipment is alleged to have been made constitutes a distinct ground of action. They are not simply different transactions growing out of one contract, but they are independent rights of action of like nature, but having no special relation to each other, and brought together uy order of the court for convenience at the trial. At the common law a plaintiff had the ahsolute right to discontinue his action before or after issue joined, and with·
YOU'NG V. GRAND TRUNK BY. OF CANADA.
349
out leave of court. Under the practice now prevailing in this state this right is recognized, except that where a counter-claim is involved there cannot be such a discontinuance of the whole case as would defeat a trial upon the counter-claim. Bertschy v. McLeod, 32 Wis. 205; 8. O. 33 Wis. 170; S. C. 34 Wis; 244. In the case at bar no counter-claim is set up. It was admitted on the a.rgument that the plaintiff has the right to discontinue his present entire suit. If this be sO,-if, in other words, he has the right to discontinue as to all the causes of a.ction,-why has he not / the right to discontinue as to ene of them? Suppose the case should proceed to trial in its present form, and the plaintiff should offer no proof in support of two of the causes of action, would it not be the duty of the court, on application of the plaintiff, to direct the jury to find for -the defendant upon those causes of action as in a case of nonsuit? Clearly it would; and in such case the court, in accordance with the usual practice, would enter judgment without prejudice. This I regard a conclusive test upon the question here presented. For if ;the plaintiff would lose the right to discontinue at the trial, or at that stage to take a judgment of nonsuit as to either or any of the causes of action, it follows as a logical conclusion that the right to discontinue now may be asserted and should not be denied. But it is contended by the learned counsel for the defendant that to permit the plaintiff to discontinue as to two of the causes of action and prosecute his suit upon the one remaining would involve a disregard of the rule which forbids a splitting up of demands where all 'should be joined in one suit; and Bendernagle v. Oocks, 19 Wend. 207, and Reformed Protestant Duteh Ohurch v. Brown, 54 Barb. 191, are cited. The rule invoked, however, goes no further than against· s6veralactions for the· same wrong or on the same contract, or on several demands resting in matters of account which may be joined and sued for in the same action. And the cases cited reach only to this extent, for they admit that the rule does not extend to distinct contracts. In the syllabus to Bendernagle v. Oocks, supra, the decision is correctly stated, and is to the effect that where a party has several demands or existing causes of action growing out of the same contract, and if the demands or causes of action be split up and a suit brought for part only and subsequently a second suit is brought for the residne, the first action may be pleaded in abatement or in bar of the second action. That case was one of breaches of several covenants contained in the same instrument. The case at bar is one where each cause or right of action springs from an independent
BoO
FEDERAL REPORTER.
contract. The several contracts have no relation to each other. They are of kindred nature, but they are none the less distinct, and none the less represent distinct and separate transactions between the parties. It is, however, further urged that as each 'of the plaintiffs' demands, when taken separately, does not involve an amount sufficient to enable the defendant, if ultimately defeated, to take an appeal, and as the amount of all the demands when united is sufficient to give a right of appeal, the court cannot permit a discontinuance as to two of the causes of action without jeopardizing a substantial right, namely, a right of ultimate appeal. It cannot be claimed that there is any vested right of appeal at this stage of the controversy, nor that such right would accrue until verdict and judgment should pass. The most that can be said is that there is a possible future right of that character. It is not a right in esse. Possibly it is not even a right in futuro, because the defendant may have verdict and judgment in its favor. Everything in that respect now rests in con· tingency, and although it may be that if all the causes of action now in suit were to be prosecuted together, and if the defendant were to be defeated, there would then accrue a right of appeal, I do not think that at the present stage the defendant is possessed of such a right in that regard as can be held to forbid the exercise by the plaintiff of his right, which is more in the nature of an absolute, present right to discontinue as to some of his causes of action. Upon this point, Pacific Mail Steamship Co. v. Leuling, 7 Abb. Pro (N. S.) 37, was cited, in which case it was at least inferentially held that, where lL defendant has acquired a right in reference to the sub· ject-matter of the action, a discontinuance in disregard of that right would not be permitted. But the right there spoken of is some right acquired by order or decree of the court already made, and in the face of which a discontinuance is asked. Of course, it is not difficult to understand that litigation between the parties to a controversy may proceed to such an extent, even before the final judgment or decree, that substantial and valuable rights may accrue or become estab· lished, and in that event a discontinuance or dismissal, which should take away or affect such rights, would not be permitted. But that is not this case. The plaintiff will be granted leave to discontinue, without prejudice, his suit as to the two causes of action cantained in the complaints, marked Nos. 2 and 3, on payment of the taxable costs in those two <lases.
BUELL
V.
CINCINNATI. lllFFINGHAM
&
·QUINOY CONST. 00851
BUELL and others v. CINCINNATI, EFll'INGHA:M & QUINCY CONSTRUCTION Co. and others. , (Olrcuit Oourt, S. D. Illinois. November; 1881.)
OF ·OAUBEs-RECEIVERS-CONTRACTORS.
Where a receiver who has been appointed by a state court in the interest of the creqitors of a 'construction company proceeds with the work of construc, tion by entering into contracts, etc., the fact that a arises between 4im and a contractor, or between a contractor and other claimants of a com, mon fund, does not entitle the contractor to remove the cause to a federal court, especially after the state court has proceeded, without objection, to adjndicate upon the rights of the parties.
Motion at chambers, by William Sturges, to,file a transcript of the state court and to docket the cause iri.-this court. ,{ Mr. Cooper and Mr. Kales, for Sturges. J. C.' Black, reoeiver, pro se. Dent J; Black, for receiver and other creditors. Callaghan, for creditors. 'DRUMMOND, C. J. The object of the, motion is to obtain the Qpinion of this court upon the question of jurisdiction made in the case. The bill was originally filed by some creditors of the construction company in the circuit court of Ctawfordcounty, in this state. The construction company had made a contract for building a railroad, and the bill was in the nature of a creditors' bill ,for the protection of the interests of the plaintiffs. A receiver was appointed by the state court and was authorized togo on and complete the construction of the road undertaken by the company· .claiming to proceed in pursuance of the authority thus conferred on him, the receiver made the contract in which Mr. Sturges was interested. If this were a question growing out of an ordinary application made to the sta.te court by a claimant of the construction company for the protection of his rights, and asking that the property in its custody might be made available for his claim, in whole or in part, and the claim had originated entirely independent of any action some pretence, if the of the state court, possibly there might citizenship of the parties justified it, that the cause might be removed. But this is a case where the only right which exists is by virtue of the action of state court. The receiver of the state court, in a suit pending there, was authorized to perform certain acts; to employ men and to make contracts involving the construction of a railroad. In the ordinary case of a receiver appointed by the court to operate a railroad he may employ agents---aa a superin,.
M.,..