59 Ga. 17 | Ga. | 1877
To May term, 1874, of Burke superior court, Schley and wife and Miller brought their bill in equity, against Cars-well as executor of Miller, the deceased father of Mrs. Schley, and of Miller, the complainant. Discovery was expressly waived. The matter in controversy exceeded five hundred dollars, exclusive of costs. The object of the suit was to recover certain property, and the hire and profits thereof, claimed by Mrs. Schley and her brother under an ante-nuptial settlement into which their parents entered, in 1827, in contemplation of marriage. It was alleged that their deceased father continued to hold the property after their mother’s death, and until his own death, and that he died in possession of the same, or chargeable therewith, etc. At the appearance term, the defendant demurred to the bill for the want of .equity, and for other reasons.. The demurrer was overruled on the 9th of March, 1875, and that judgment was affirmed in the supreme court on the 12th of May, 1876. The case is reported in 56th Ga., 101. The remittitw' reached Burke superior court during the May term, 1876, and was made the judgment of that court on the 24th of May. Subsequently, in the same term, an order was passed directing that an answer be filed sixty days before the next term, and that the cause stand for trial at said next term. On the 9th of August, 1876, the complainants amended their bill, accommodating its tenor more exactly to the view of their rights expressed by the supreme court, adding specific allegations touching hire, etc., and introducing certain charges as to the conduct of the executor in respect to a part of his administration. The defendant’s answer to the bill was filed on the 12th of September, 1876. The fall term of Burke superior court commenced in the following October, and was adjourned over to November. During the sitting of the court in November, the complainant, Schley, made and filed his petition for a removal of the cause into the circuit court of the United States, and there
Throughout this opinion, we have treated the case as if Oarswell, the executor, had been sole defendant from the beginning. When the cross bill was dismissed, the original bill stood as if no cross bill had been filed. The great fact is, that so soon as the judgment of this court was entered in the superior court, a decree could, without either error or irregularity, have been rendered for the complainants, if they had then, by evidence, established the averments of the bill. And their bill, as it then existed, embraced the substance of the whole matter in dispute. The petition for removal concedes that since the demurrer was finally decided, there has been no controversy in which the co-defendants of Oarswell had, or have, any interest. To prevent a confusion which would be distressing to courts, and detrimental to parties, variable and contingent elements should have the least possible influence in prolonging the time within which the transfer of cases may be demanded. Where, as in Georgia, there is regular system in fixing the appearance term and the trial term of cases, by general law, and not by'special or particular orders, the matter will always be plain so long as the system is kept in sight and made the basis of decision. But to disregard the system^ and undertake to follow each case through the accidental forms that it may assume at successive periods, would be to exchange certainty for uncertainty. Nothing in practice is more to be deprecated than the adoption of a doubtful standard by which to determine the boundary line between state jurisdiction and federal jurisdiction.
Cited for plaintiff in error, Dillon on Removal, 57, 58, 59, notes; Act of March 3, 1875; Code, §§1754, 1774. For defendant in error, Southern Law Review, July, 1876, p. 318; 19 Wall, 214, 223; 14 Howard, 23; 15 Ib. 198; 16 Peters, 97; 20 Wall., 454.
Judgment reversed.