86 F. 161 | 5th Cir. | 1898
The facts in this case, necessary to an understanding of the issues involved, are as follows: A suit, being a trespass to try title to land under the Texas statute, was filed in the district court of McLennan county, on ihe 17th day of February, 1894, in favor of the Farmers’ & Mordíante’ National Bank of Waco against A. N. Schuster et al. On July 2, 1895, the plaintiff filed its first amended original petition, which petition was trespass to try title to about 20,000 acres of land lying in Sterling county, Tex., the defendants being A. N. Schuster and wife, Mrs. Lucretia Schuster, A. Judson Cole and wife, Luda Cole, Mrs. Florence King, August Schuster, and D. T. Bomar, all of whom resided in the state of Missouri, except defendant Bomar, who resided and resides in the state of Texas. The petition showed the levy, in favor of the bank on the 26th of February, 1894, of a writ of attachment on the land sued for as the property of August Schuster, issuing out of the district court of McLennan county, Tex.j a judgment in said cause foreclosing its attachment lien; an order of sale under said judgment, and purchase by petitioner, with sheriff’s deed to the land. The petition also alleged that on the 5th day of December, 1893, August and A. N. Schuster, for the purpose of hindering, delaying, and defrauding their creditors, conveyed part of said land to A. Judson Cole, trustee for Mrs. Lucretia Schuster; that on the same day said August Schuster, with intent to hinder, delay, and defraud Ms creditors, conveyed all of the remainder of said land except six sections to A. N. Schuster, his co-defendant; that on the 8th day of May, 1894, A. N. Schuster conveyed all the land conveyed to him by August Schuster to D. T. Botnar, as trustee,,for the benefit of Mrs. Luda Cole and Mrs. Florence King in the first: class, and for the benefit of about 60 other parties, scattered all over the United States, in the second class, said trust deed directing said Bomar to take charge of said property, manage and dispose of the same, and pay
The first question to be determined in this case is that of the jurisdiction of the circuit court, and that depends upon whether or not the case was properly removed from the state court. It will be seen from the foregoing, summary of the proceedings that the case, as it stood in the circuit court when it was tried and determined, was there by reason of two removals. One o£ these removals was by Mrs. Lucretia Schuster on the ground of prejudice and local influence, and the other by Fenton and Graham on the ground of diverse citizenship. We will first consider the removal of Mrs. Schuster. The petition for removal was presented and the removal allowed, it will be perceived, after the case had been tried, and mistrial entered, in the state court.' The question as to the stage at which a case may be removed from a state court to the circuit court of the United States under the local prejudice clause of the act of March 8, 1887, seems to have been fully settled by the supreme court in Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. 207, in which case the language “at any time before the trial thereof” ‘was construed, and its meaning settled. The following quotation from the opinion by the chief justice will show more clearly what the court did decide:
“The act of March 3, 1887, c. 373 (24 Stat. 552), and also as corrected by the act of August 13, 1888, c. 866 (25 Stat. 433, 435), provided that ‘any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to the said circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice and local influence, to remove said cause.’ In view of the repeated decisions of this court in exposition of the acts of 1866, 1867, and 1875, it is not to be. doubted that congress, recognizing the interpretation placed on Jhe word ‘final’ in the connection in which it was used in the prior acts, and the settled construction of the act of 1875, deliberately changed the language, ‘at any time before the final hearing or trial of the suit,’ or ‘at any time before the trial or final hearing of the cause,’ to read, ‘at any time before the trial thereof,’ as in the act of 1875, which required the petition to be filed before or at the time at which the cause could first be tried, and before the trial thereof. The attempt was manifestly to restrain the volume of litigation pouring into the federal courts, and to return to the standard of the judiciary act' and to effect this in part by resorting to the language used in the act of 1875, as its meaning had been determined by judicial interpretation. This is the more obvious in view of the fact that the act of March 3, 1887, was evidently intended to restrict the jurisdiction of the circuit courts, as we have heretofore held. Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303; In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141.”
The other removal from the state court to the federal court was by Fenton and Graham on the ground of diverse citizenship. Fenton and Graham bought from Homar long after the; suit by the bank against Homar and others had been filed, and pending the litigation. The suit was commenced on February 17, 1894, and the conveyances from Homar, trustee, to Fenton and Graham, were made in October, 1896. Under the authorities, they came info the litigation subject to the disabilities of those who were already parlies to the suit. Homar was not only a party, but a necessary party, to the suit. He was in possession of the land under a deed empowering him to sell the same, and make certain disposition of the proceeds. Being in actual possession and control of the land, and collecting the rents, as stated, it seems clear Hull he is not only a. proper, but a necessary, party in a suit by one; asserting title and the rigid to possession of the land. Ho-mar being a parly to the suit, and a citizen and resident of Texas, and the bank being a Texas corporation, Fenton and Graham came into the case subject to the existing conditions, and to the ihen disabilities of the parties. One of the conditions and disabilities then existing was that the case was not removable, on ihe ground of diverse citizenship, to the circuit court of the Uni led States. Homar’s disclaimer did not affect the status of the case in (his respect.
In Cable v. Ellis, 110 U. 8. 389, 4 Sup. Ct. 85. in which Hiere was a similar question, the headnote to the decision is as follows:
“After a suit in equity involving tille 1o real estate and priority of lien had long Been pending in a state court, and llie highest court in the state had decided some of the points in controversy, and had remanded the cause to the court Mow to have other issues determined, A. Became interested in the property by grant from one of the parties to the suit, and intervened in it by leave of the state court to protect his rights at a time when the right of removing the cause from the state court to the federal court had expired as to all the parties. Held, that under the circumstances the intervention of A. was to be regarded as an incident to ihe original suit, and that he was subject to the disabilities resting on the party from whom he took title, and that, the time for removal having' oxxiired before he intervened, his right of removal was barred by that fact.”
To ihe same effect, see Railway Co. v. Shirley, 111 U. S. 358, 4 Sup. Ct. 472.
In Jefferson v. Driver, 117 U. S. 272, 6 Sup. Ct. 729, the court, in the opinion, uses this language:
“As to the application of J. VV. Jefferson for a removal under the act of 1875, the rule in Cable v. Ellis, 110 U. S. 380, 4 Sup. Ct. 85, applies. lie was brought into the suit as a purchaser pendente lite, and the, relief asked against him is only an incident to the original controversy. The proceeding is merely ancillary to the suit pending when he bought the property in dispute, and under which he got possession. It is, in short, only a part of the machinery in the administration of the cause. By purchasing pendente lite he connected himself with the suit, subject to the disabilities of the other parties in respect to a removal at the time lie came in.”