279 F. 281 | D.N.J. | 1922
This suit — in attachment — was begun in the New Jersey Supreme Court, and removed here by the defendant, a citizen of the state of New York, on the ground that the controversy was wholly between citizens of different states. After the removal, the defendant, on special appearance in this court, obtained leave to apply for a rule requiring the plaintiff to show cause why the writ of attachment issued out of the state court should not be quashed, and the lien thereof discharged; why, pending the hearing on the rule, it should not be permitted to take testimony to be considered on the return thereof; and why an order should not be made, directing the
“Sec. 36. When any suit shall be removed from a state court to a District Court of the United States, * * * all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed.”
“Sec. 38. The-District Court * * * shall * * * proceed therein as if the suit had been originally commenced in said District Court, and the same proceedings had been taken in such suit in said District Court as shall have been- had therein in said state court prior to its removal.”
1 U. S. Comp. Stat. Ann. §§ 1018 and 1020, pp. 1027 and 1075.
These provisions are intended to give the District Court complete control over interlocutory orders made and proceedings had in the cause before removal, and, by necessary implication, to authorize the setting aside or modification of orders made by the state court, li the cause had conlinued before the state court it could have set aside or modified the orders in question, and what it could have done may be done by the District Court on a rehearing, if the facts warrant such a course. Indeed, upon the District Court’s assuming jurisdiction of the suit, it must have a free hand to dispose of all phases of the controversy. Ex parte Fisk, 113 U. S. 713, 725, 5 Sup. Ct. 724, 28 L. Ed. 1117; Remington v. Central Pacific R. Co., 198 U. S. 95, 99, 25 Sup. Ct. 577, 49 L. Ed. 959; Perry v. Sharpe (C. C.) 8 Fed. 15, 24; Bryant v. Thompson (C. C.) 27 Fed. 881; Flint v. Coffin (C. C. A. A), 176 F. 872. 100 C. C. A. 342 (certiorari denied 219 U. S. 589, 31 Sup. Ct. 472, 55 L. Ed. 348); Mannington v. Hocking Valley Ry. Co. (C. C.) 183 Fed. 133, 141, 142; Buxton v. Pennsylvania Lumber Co. (D. C.) 221 Fed. 718, 723.
Of the cases cited by the plaintiff in support of a contrary view, those of Duncan v. Gegan, 101 U. S. 810, 25 L. Ed. 875, and King v. Worthington, 104 U. S. 44, 26 L. Ed. 652, are not pertinent. In the Duncan Case there had been a final determination of the controversy on appeal to the state Supreme Court, and the removing party was held to be concluded by such judgment. The King Case merely reiterated the correctness of such decision.
In Hoyt v. Ogden Portland Cement Co. (C. C.) 185 Fed. 889, the de-' cisión was controlled by the defendant’s entering a general appearance in the state court after his motion to set aside the summons was denied by that court. In Allmark v. Platte S. S. Co. (C. C.) 76 Fed. 615, failure to obtain the leave of court to renew the motion seemingly influenced the decision. However, in my judgment, to the extent that these two last-mentioned cases may be said to be authorities for denying the right of the federal court to hear motions relating to the issuing and serving of original process where like motions were denied by the state court, they, as well as Bragdon v. Perkins-Campbell Co, (C. C.)
Shall the writ be quashed? It was issued against the defendant as a nonresident. The New Jersey statute authorizes the attaching of property of a debtor:
“(2) Where the plaintiff, his agent or attorney, shall make affidavit that the debtor is not to deponent’s knowledge or belief resident in this state at the time, and that he owes to the plaintiff a debt, specifying as nearly as practicable, the amount thereof. * * * ” 1 comp. Stat. N. J., p. 133.
First. As to the alleged invalidity appearing on the face of the affidavit upon which the writ issued: The suggested defect is.that it fails to allege that “there was a debt due and owing from the defendant to the plaintiff.” It alleges “that said Edward Maurer Co., Inc., owes to the said Dicks-David Company the sum of $250,866.” This is the legal equivalent of saying that the defendant was a “debtor,” and that it owed the. plaintiff “a debt,” and satisfies the statutory requirement that the affidavit show that the debtor “owes to the plaintiff a debt.”
The rule to show cause, with the privilege of taking depositions thereunder, in accordance with the New Jersey Practice Act (Comp. Stat. N. J. 1911-1915, p. 1231, rule 191 et seq.), to be used on the hearing, and the order for a bill of particulars, are granted.