26 F. 469 | U.S. Circuit Court for the District of Northern Iowa | 1886
On the twenty-sixth of July, 1880, the complainant filed a bill in the circuit court of Webster county, Iowa, against Samuel H. Wolcott, wherein lie averred that the Dubuque & Sioux City Railroad Company, in the belief that it was the owner of certain realty in Webster county, Iowa, bad paid the state and county taxes assessed thereon; that the supreme court of the United States had subsequently decided that the land did not belong to the railroad company, but to the Iowa Homestead Company; that the defendant, Wolcott, had purchased the lands of the homestead company, and was the owner thereof, but had refused to repay the amount expended in payment of the taxes; that the railroad company had assigned to complainant all its rights and equities in the promises, and therefore complainant prayed a decree establishing the amount duo him for the taxes thus paid, and for a lien therefor upon the land in question. To this bill, the defendant, Wolcott, filed an answer on'the fourth day of June, 1881. Á trial was had, and a decree ordered in favor of complainant, from which an appeal was taken to the supreme court of Iowa. Before the submission of the cause to the supreme court, it was ascertained that the defendant, Wolcott, had died before the entry of the decree in the lower court, and thereupon the supreme court remanded the case to the lower court, in order that the proper parties
The record fails to show the citizenship of Samuel H. Wolcott during his life-time. If, when the suit was brought against him, he was a citizen of ihe same state as complainant, he could not then have removed the cause; nor, by a change-of citizenship after the suit was brought, could he have acquired such right. Gibson v. Bruce, 108 U. S. 561; S. C. 2 Sup. Ct. Rep. 873. If, by reason of diverse citizenship when the suit was brought, he then had the right of removal, he had at the date of his death, lost the right of removal under the act of 1875, by not applying therefor within the time limited by that act. Consequently, if he had been living when the removal was petitioned for, he could not, under either aspect of the case, have procured the removal of the cause to this court.
Does the administrator stand in any different position? It will be noticed that the administrator is made a party as the representative of the deceased. lie is the defendant to the same cause of action and to the same suit that the intestate was.
In Cable v. Ellis, 110 U. S. 389; S. C. 4 Sup. Ct. Rep. 85, it was held that if, during the pendency of an action, a third party obtained an interest in the subject-matter of the litigation by a transfer from one of the parties to the suit, and intervened therein, for the protection of his interest, at a time when the right of removal under the act of 1875 had been terminated in the original parties to the action by the lapse of time, such third party could not remove the cause. In Houston & T. Ry. Co. v. Shirley, 111 U. S. 358, S. C. 4 Sup. Ct. Rep. 472, the same rule was applied to a case wherein the trustees under a mortgage were substituted for the company as defendants; the court holding “that a substituted party comes into a suit subject to all the disabilities of him whose place he takes, so far as the right of removal is concerned.” In Clarke v. Mathewson, 12 Pet. 164, it is held that a bill of revivor, filed by an administrator in an action, brought during the life-time of the intestate, “is in no just sense an original suit; but is a mere continuation of the original suit.” In Whyte v. Gibbes, 20 How. 541, it is ruled that a bill of revivor filed by the administrator is merely the continuation of the original suit,
It being true, then, that at the date of the death of the defendant, Wolcott, he had not the right to remove the case under the act of 1875, and that the substitution of his administrator as defendant has the effect only of continuing the original suit, without introducing any now or different cause of action, it follows, under the doctrine announced in the cases cited, that he, as the substitute for and representative of the original defendant, comes into the case subject to the disabilities existing against the original defendant on the question of removal.
The motion to remand is therefore sustained, at the cost of the defendant.