Edward Hines Lumber Co. v. Bowers

238 F. 782 | 5th Cir. | 1917

PARDEE, Circuit Judge

(after stating the facts as above). [1] It was contended in argument by the counsel for the appellee that, without regard to any statute giving a remedy by attachment, the suit was maintainable in a court of equity to enforce the payment of the plain- ’ tiff's demand out of property of the defendants situated in Mississippi ^because of the lack of an adequate legal remedy, in that the defendants were beyond the territorial jurisdiction of the court and out of reach of legal process. The state of facts relied on to support the claim of equitable jurisdiction is not shown by the averments of the bill. As to the corporation defendants it was averred that each of them is a corporation of the state of Illinois, having its domicile in that state. It is not negatived that each of them, at the time the suit was brought, was doing business in the state of Mississippi, having an agent or agents there, upon whom in person process against the corporation could have been effectively served. The absence or inadequacy of a legal remedy to enforce the plaintiff’s demand is not shown.

By the record this is an action to recover a moneyed judgment for breach and nonperformance of a simple contract. It is well settled that such an action cannot be prosecuted on the equity side of tire courts of the United States. Scott v. Neely, 140 U. S. 106-110, 11 Sup. Ct. 712, 35 L. Ed. 358; Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 883, 977, 37 L. Ed. 804; and see McConnell v. Provident Savings Life Assurance Co., 69 Fed. 113, 16 C. C. A. 172. Section 38 of the Judicial Code provides:

“See. 38. The District Court of the United States shall, in all suits removed under the provisions of this chapter, 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.”

Rule 22 (33 Sup. Ct. xxiv) Equity Rules of the Supreme Court provides:

“If at any time it appear that a suit commenced in equity should have been ■brought as an action on the law side of tb,e court, it shall be forthwith transferred to the law side, and be there proceeded with, with only such alteration in the pleadings as shall be essential.”

It follows that there was reversible error in overruling the motion to transfer this action to the law docket for trial as an action at law.

The decree appealed from is reversed, and the cause is remanded, with instructions to transfer the same to the law docket, and thereafter proceed according to law, the costs of appeal to be paid by the appellee.

The writ of error sued out is dismissed, at the cost of plaintiffs in error.

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