46 Iowa 406 | Iowa | 1877
Lead Opinion
In view of the acknowledged fact that causes taken to the Supreme Court of the United States are not reached for trial under two or three years after the writ of error is sued out or appeal is taken, it therefore becomes a serious matter whether . this right of removal is practically within the uncontrollable power of a party to an action. The Act of Congress provides that the Circuit Court of the United States, to which any cause is removable, “ shall have power to issue a writ of certiorari to the State court, commanding said State court to make a return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this Act for the removal of the same, and enforce said writ according to law.” This power given the Circuit Court would seem to be ample and all-sufficient to protect the party seeking to transfer a cause, which is .wrongfully refused by the State court. But such Circuit Court cannot protect a party against whom a wrongful removal is made because of appeal to the Supreme Court of the United States. The Act of Congress further provides that the petition and bond may be filed in vacation of the State court; hence it is insisted as the State court is not in session and earn
II. As we understand the abstract, no exception was taken to the ruling of the court on the application of Meyer to be made a co-defendant, and Dennison alone appeals; it is therefore very doubtful whether we can review the action of the court below in this respect. Be this, however, as it may, it is clearly disclosed if Meyer had any interest at all it was in the capacity of a co-trustee with Dennison, and his answer and defense filed in the court below is identical with that of Dennison, whose answer remained on file and as to whom there was a trial on the merits. It is, therefore, clearly apparent there was no prejudicial error in the action of the court below in this respect.
A court of equity will keep an incumbrance alive or consider it extinguished, as will best subserve the ends of justice. Barnes v. Camack, 1 Barb., 392, and authorities cited.
We have examined the case of The State of Iowa v. Kake, 17 Iowa, 215, and other authorities cited by counsel within our reach, and must confess our inability to see their applicability in this case. We have no hesitation, therefore, in holding that the purchase by the plaintiff at sheriff’s sale did not amount to a satisfaction or extinguishment of the lien.
The lien of the plaintiff is prior and superior to that of the defendant. Having thus noticed all the questions passed in argument by appellant, it only remains for us to announce that the judgment of the Circuit Court must be
Affirmed.
Rehearing
ON i REHEARING.
Upon the petition of appellant a rehearing was granted in this case. The case has been re-argued upon both sides, and is now again finally submitted for determination.
I. It is claimed that the court is in error in' stating in the former opinion that “ there was no evidence, by affidavit or otherwise, presented to the court, tending to support the allegations in the petition that Meyer and Dennison were citizens of some state other than Iowa.”
On the 6th day of April, 1874, the attorney of plaintiff filed an affidavit in the cause, stating “ that personal service of original notice in said suit cannot be made upon the defendants, John Edgar Thompson and William Dennison, trustees of certain bondholders of said railroad, within the state of Iowa, and they are non-residents of said state of Iowa.”
It is claimed that this affidavit furnished proof of a conclusive character that Meyer and Dennison were citizens of some other state than Iowa. To this position there are several answers: 1. The affidavit relates to a time more than one year prior to the time of filing the petition for transfer. Evidence that Dennison and Meyer were non-residents of Iowa on the 6th day of April, 1874, would not prove that they were such non-residents on the 19th day of May, 1875, when the petition for transfer was filed. 2. The affidavit merely states negatively that Meyer and Dennison do not reside in Iowa. It does not state affirmatively that they do reside in any other state of the United States. For aught that the affidavit shows
II. Upon the main question discussed in the opinion, respecting the right of a state court to inquire into the truth of the facts alleged in the petition for a change of forum, we deem it unnecessary to add to what has already been said. We are satisfied with the conclusion reached in the foregoing opinion, and shall adhere thereto until the question is determined adversely by the court of ultimate resort. Our view derives at least indirect support from Holden v. Putnam Fire Insurance Co., 46 N. Y., 1, and Railway Company v. Ramsey, 22 Wallace, 322.