220 F. 236 | E.D. Tenn. | 1914
Clearly, if this suit, which was removed from a Chancery Court of the State, does not involve a dispute or controversy'properly within the jurisdiction of this court, it must either be remanded to the State court or dismissed, “as justice may require,” pursuant to section 37 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1098), superseding section 5 of the Act of March 8, 1875, c. 137, 18 Stat. 472 (Comp. St. 1913, § 1019).
Under these circumstances the plaintiff relies upon the statement in Simkins’ Fed. Eq. Suit (2d Ed.) 885, 886, that “it seems that when a case is pending in a State equity, which if removed would, by the nature of the case, go on the law side, the court should remand and not require the pleadings to be recast.” The cases of Cates v. Allen (U. S.) supra, and Gombert v. Lyon (C. C.) 80 Fed. 305, which are cited in support of this suggestion, do not, however, in my opinion, sustain the view suggested in the text, since in neither of them was the nature of the case such that it could have been transferred to the law side of the court, and the only alternative presented to the Federal Court was that of either remanding the suit or dismissing it entirely.
“That the Legislature of the State, by extending the equitable jurisdiction of the state courts to matters in which an adequate remedy at law is given to the suitor by the federal courts, cannot thereby deprive the citizen of another state of his right of removal to this court is plain. But, on the other hand, if a state statute gives any suitor a remedy in equity in the state courts better and more complete than that which this court can give him at law, and if, furthermore, the remedy thus given is one which this court cannot enforce in equity, the suitor has the right to carry on his litigation in the state court of equity, undisturbed by removal here.”
I may add that I find nothing in conflict with the conclusion above reached in Thompson v. Railroad Companies, 6 Wall. 134. In that case no question of remanding to the State court was involved or decided by the court, the only question being as to the validity of a decree in a common law action which had been removed from the State court and improperly transferred to the equity side of the court, thereby depriving the defendants of their constitutional right of trial by jury.
An order will accordingly be entered overruling the plaintiff’s motion to remand and granting the defendants’ motion to transfer this cause to the law side of the court.