2 Tex. L. R. 403 | Tex. | 1883
After a good and sufficient petition for the removal of a cause from the state' court, where it is pending, to the United States circuit court, has been filed in the former court, it can enter no further order and take no further action in such cause. Tex. & P. R. R. Co. v. McAllister, 59 Tex., 349, and authorities there cited.
If, then, the petition and other steps taken for removal in this case are good and sufficient, all the subsequent proceedings of the district court of Van Zandt county were without authority.
Let us, then, inquire whether or not the proceedings did in fact disclose good and sufficient grounds for the removal of the cause under consideration ?
The petition for removal and the whole record, taken together, show that the character of the controversy, and the attitude of the parties to it, was not such as to authorize the removal of the entire cause in the manner in which it was sought to be done.
Both the appellees and all of the appellants except one are citizens of the state of Texas. That one does business in Texas, and is the mercantile partner, resident in New York, of two of the other appellants, and as such partner is sued jointly with them for the value of certain goods, wares and merchandise, on which appellants are alleged to have wrongfully caused to be levied a writ of attachment, they (the appellants) asserting that the property so by them attached belonged to one I. M. Palmer, who was indebted to them.
The appellees thereupon, instead of seeking to recover the goods so seized, as they might have done, elected to bring this action for their conversion against the commercial firm of L. & H. Blum, of Galveston, Texas, one of whom, it seems, happens to be a citizen of New York. They also join in this suit for the damages sustained by the conversion the remaining defendant, the constable Davis, who, under the direction of the commercial firm of L. & H. Blum, levied
This is the whole case. Neither the pleadings nor the proof show any separate claim or question in which the joint partner, who is a citizen of -New York, is alone interested.
The case presents no special features that are sufficient, under the law of congress, to authorize the action desired. The petition fails to show sufficient grounds for the removal.
Since the petition for removal was filed in this case these questions have, in more than one shape, been presented to, and passed upon by, the supreme court of the United States, and guided by their action, as we will and ought to be in construing a federal statute, we believe the petition and proceedings are not sufficient in this case to authorize the removal of the cause. Corbin v. Van Brunt, 105 U. S., 577; Hyde v. Ruble, 104 U. S., 407; Blake v. McKim, 103 U. S., 336; Removal Cases, 100 U. S., 457; Tex. & P. R. R. Co. v. McAllister, cited supra, and cases there cited; Barney v. Latham, 103 U. S., 205. See, also, in this connection, the following cases: Clark v. Chicago, M. & St. P. R. R., 11 Fed. Rep., 355; Bates v. Days, 11 Fed. Rep., 528; Van Brunt v. Corbin, 14 Blatch., 496; Petterson v. Chapman, 13 Blatch., 395; Hervey v. Illinois & M. R. R. Co., 7 Biss., 103; N. J. Zinc Co. v. Trotter, 23 Int. Rev. Rec., 410.
The only other assignment of error that it is deemed necessary to allude to is the one bringing in question the correctness of the charge of the court in instructing the jury on the subject of allowing interest on the value of the goods from the date of their illegal conversion to the time of trial at eight per cent, per annum.
This charge is claimed to be erroneous and not warranted by the pleadings. Under the state of the pleadings and the facts of the case the charge seems to be favorable enough to the appellants. If the appellees were entitled to any 'moneyed judgment, under the pleadings and proof, against the appellants, the amount for which the judgment was rendered was not increased by the action of the court in giving the charge complained of. Nor do we believe that the charge was, under all the circumstances of the case, erroneous. Wallace v. Finberg, 46 Tex., 40; Weaver v. Ashcroft, 50 Tex., 427.
Affirmed.
[Opinion delivered October 15, 1883.]
