Kennedy v. Ehlen, 31 W. Va. 540

31 W. Va. 540 | W. Va. | 1888

Green, Judge :

The first question presented by this record is: Did the court err in its decree of February 1,1887, refusing to remove the cause to the Circuit Court of the United States, as asked by the petition of John E. Ehlen and others ? The decree on its face shows, that the court below based this decree on these reasons: first, that this cause was matured for hearing and regularly set for hearing under the laws of this State as to all the defendants at the October term, 1886, and therefore the petition for removal, which was first presented at the January term, 1887, was not filed at the first term, when this cause stood for hearing; secondly, that as at the October term, 1886, one of the defendants to this cause filed a demurrer to the bill, which at that term was overruled by the decree of November 10, 1886, and after this action, the court going to the merits of the cause, it was too late to file said petition for removal under the act of Congress of March, 1875; thirdly, that the bill stood for confessed by all the defendants petitioning for the said removal upon default entered, whether rightly or not is immaterial, and said default had not been set aside, and no appearance made by any of the said defendants, the petitioners, by demurrer, plea, or answer, and for that reason could not be removed ; and lastly, that all said parties petitioning for such removal are residents and citizens of Maryland except James A. Buchanan, resident and citizen of New York; and Elizabeth G. Kennedy and Martha E. Gray, two of the plaintiffs, are and at the institution of this suit were and continuously since have been residents and citizens of Maryland, E. Boyd Pendleton, of West Virginia, and A. B.. Pendleton, of Virginia, and therefore that the said act of 1875 would not entitle the petitioners to remove said cause to said United States Court. Is it true, as stated in this decree, that this cause was matured for hearing at the October term, 1886 ? The appellant’s counsel claim in their argument, that this was a special term of the court, and that the first regular term of the court after the cause was matured for hearing was the January term, 1887, when the petition for removal of the cause to the United States Circuit Court was filed. The appellee’s counsel claim, that, the October term was a regular term of the court. The record does not show, whether this October term was a regular or special term of the court; but it is obvious, that it was a special term ; for the regular terms of the Circuit Court of Berkeley were held in the months of J anuary, April and September, beginning on the second Tuesday in these months, (see Code W. Va., 2d ed.,1027,) and there are but three regular terms of each Circuit Court.

A cause cannot be removed to a Circuit Court of the United States, because it involves a controversy between residents of the State, wherein the controversy is pending, and non-residents of such State, unless the petition for such removal is filed at the term of the court, at which it is first ready for hearing and trial and before the trial. See Gregory v. Hartley, 113 U. S. 746, 5 Sup. Ct. Rep. 743 ; Babbitt v. Clark, 103 U. S. 606; Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. Rep. 495; Scharff v. Levy, 112 U. S. 711, 5 Sup. Ct. Rep. 360.

The act of Congress of March, 1875, under which this petition for a removal of the cause was filed, provides, that it may be filed “before or at the term, at which a trial could be had,” which in this case would mean before or at the term held in October, 1886, and this whether it was a regular or special term; for by our statute-law any cause ready for hearing may be heard and determined at such special term of a Circuit Court, the same as if it were a l’egular term of such court. See Code W. Va., ch. 112, § 8, p. 747. The record shows, that the cause was matured for hearing and .set for hearing at the October rules, 1886,—that is, on the Monday after the 3d day of October, 1886. And the court below, therefore was not mistaken in reciting in the decree, that the case was matured for hearing at the October rules, 1886, though this was a special term.

It is settled that a cause can not be removed into the Circuit Court of the United States after the term, at which it is ready for hearing in the State court. It is claimed by the appellant’s counsel, that the act of Congress, which authorized the filing of said petition “before or at the term, at which a trial could be had,” meant at the first regular term, at which the cause could be first tried, and before the trial thereof; that to construe the statute as applicable in such case would be to leave the whole matter absolutely to the discretion of the lower court; that by the language, “could be first tried,” the statute meant in the regular course of proceedings in the court where this suit is brought. Such a construction, especially where non-residents are employed as counsel, it is claimed, is a practical denial of the right to remove. To my mind the statute must be construed in the same manner, whether the counsel employed were non-residents or residents of this State or of another State. If a nonresident counsel undertakes to practice in the courts of this State, he must be prepared to acquiesce in the decisions of our courts. Our courts do not carry out our law in one manner, when the counsel of parties are residents, and in another manner, when the counsel are non-residents. The cause having been regularly set for hearing at the October rules, 1886, it could only have been moved into the Circuit Court of the United States during the October term, 1886. The position taken by the court below in its decree of February 1,1887, that the cause ought not to be removed from the State court on the petition of any of the defendants, when the bill stands confessed by all the defendants petitioning for such removal upon default entered at a former term of the court, when said default had not been set aside, and there is no appearance by demurrer, plea, or answer of the defendants petitioning for said removal, appears to be in accord with sound reasoning and is supported by authorities. See McCallon v. Waterman, (E. D. Mich., Brown, J.,) 4 Cent. Law J. 413; Bright v. Railroad Co., 1 Ab. New Cas. 14; Dill. Rem. Causes, 82; Desty Removal, p. 148, § 11 d.

“ The term at which a cause could be first tried ” means “ the term at which either party may demand a trial.” It is not necessary, that it should be at the first term at which it could be put at issue, but at any term, before the pleadings are completed, or at the first term following. See Babbitt v. Clark, 103 U. S. 606; Whitehouse v. Insurance Co., 2 Fed. Rep. 498. When a case, as in the case before us, has been regularly-set for hearing and was in a condition, where it could be tried in conformity with law and the practice of the court at a certain term of the court, an application to remove it at a subsequent term comes too late. See Wanner v. Sisson, 28 N. J. Eq. 117; Aldrich v. Crouch, 10 Fed. Rep. 305.

The petition for removal was by John F. Ehlen, a citizen and resident of Baltimore, Md., James A. Buchanan, of New York, and The Meadow Branch Anthracite Coal & Iron Company of Baltimore, Md. These several parties defendant have a controversy with the plaintiffs, who were residents of the States of Virginia, Maryland and New York, the petitioners being also residents of these States. Most of the petitioners lorthe removal of the cause were residents and citizens of Maryland, and most of the plaintiffs, with whom they had the controversy, were also residents and citizens of Maryland. All forming together a party on one side of such suit must be citizens of different States from all those forming together the party on the other side. See Case of Sewing-Machine Cos., 18 Wall. 583; Hyde v. Ruble, 104 U. S. 407; Winchester v. Loud, 108 U. S. 130, 2 Sup. Ct. Rep. 311; Railroad Co. v. Mills, 111 U. S. 249, 5 Sup. Ct Rep. 456; Crump v. Thurber, 115 U. S. 56, 61, 5 Sup. Ct. Rep. 1154 ; Barney v. Latham, 103 U. S. 205. The Circuit Court of Berkeley, therefore, did not err in refusing to remove the cause into the District Court of the United States.

The West Virginia statute of frauds requires the memorandum of the purchase of realty in writing to be signed by the agent to bind. But the agent may have had verbal authority: The English statute, on the contrary, provides that “ the agent shall be thereunto lawfully authorized in writing.” This was designedly omitted from our statute. See Conaway v. Sweeney, 24 W. Va. 643; Brown v. Brown, 77 Va. 619; Yerby v. Grigsby, 9 Leigh 387; Johnson v. Somers, 1 Humph. 268; Doughaday v. Crowell, 11 N. J. Eq. 201; Shamburger v. Kennedy, 1 Dev. 1.

The Circuit Court properly overruled the demurrer to the bill. The memorandum setting out the terms of such sale was in writing, signed by the party to be charged with the purchase, and this is all that was requisite to make the contract enforceable. In the cause before us the purchasers are alleged to have ratified the purchase and taken possession of the lands and used them as theirs cutting timber from them. Such part performance made the contract enforceable specifically by a court of equity. 2 Minor Inst. 771 et seq; Middleton v. Selby, 19 W. Va. 168; Conaway v. Sweeny, 24 W. Va. 643; McComas v. Early, 21 Gratt. 28; Lester v. Lester, 28 Gratt. 737 et seq.; Brown v. Brown, 77 Va. 619.

The court then properly refused to remove the cause into the Circuit Court of the United States and properly rejected the petition therefor by the decree of February 1, 1887; and, as it is apparent, that the agreement of March 24, 1883, gave to James A. Buchanan an option to purchase before July 12,1883, on certain specified terms certain lands lying in Berkeley and Morgan counties, W. Va., and that he exercised this option and agreed to become the purchaser on the specified terms before the 1st of July, 1883, and thereafter this became an absolute agreement to purchase said lands on said terms, the court did not err in the decree of October 19,1887, in decreeing a specific execution of this contract by ordering a sale of said lands to pay the purchase money, unless the same should be paid in a reasonable time fixed by the court.

But the court did err in this decree in deciding, that said purchase-money was due and payable by the Meadow Branch Anthracite Coal and Iron Company, John F. Ehlen, James A. Buchanan, Frank Ehlen, and Frederick Ehlen, jointly and severally; the evidence clearly showing that the said purchase was made by James A. Buchanan for himself and John F. Ehlen, and that Frederick Ehlen and Frank Ehlen had no interest in said purchase. It is true, that, when said purchase was made, there was an understanding between John F. Ehlen and James A. Buchanan, that a corporation would be formed for the purpose of mining coal and iron ore and selling lumber eio. from the lands to be purchased ; and that when said option to purchase these lands was exercised, the company was already formed by the agreement of date June 27,1883, which was signed and sealed by James A. Buchanan, John E. Ehlen, Frank Ehlen and Frederick Ehlen, as also by one Charles P. Manning, who afterwards died. These articles of agreement being duly recorded, the Meadow Branch Anthracite Coal and Iron Company of Baltimore City at once became a corporation, though there was never any meeting of the stockholders of said corporation and no election of officers, as the business of this corporation so formed by this agreement was for the first year to be conducted by the parties signing the agreement. See Haws v. Petroleum Co., 101 Mass. 385.

It was the purpose of James A. Buchanan and John F. Ehlen, when they agreed to purchase said lands, to sell them to this corporation when formed, but there was never any sale of . said lands made by them to the said corporation. This was never done, and it does not in any way appear that the corporation was ever willing to give $30,000.00 for these lands, much less that they ever agreed so to do. It was therefore not bound to pay this purchase-money, and much less were Frank Ehlen and Frederick Ehlen bound personally to pay this purchase-money; they being in no manner interested in the matter and only connected with it by having signed the agreement to form the corporation for the purpose of mining etc., but which, when formed, could have mined any other lands it chose to purchase, -and was under no obligation to purchase or mine these lands so bought by James A. Buchanan.

The Circuit Court, therefore erred in said decree of October 14,1887, in holding, that the Meadow Branch Anthracite Coal & Iron Company, Frank Ehlen and Frederick Ehlen were jointly and severally bound with John F. Ehlen and James A. Buchanan for the sum of $26,666.66-|, with interest from July 1,1883, till paid, the balance of the purchase-money for eight ninths of said lands, the only parties personally bound for the said purchase-money .being James A. Buchanan and John F. Ehlen. This decree was in all other respects correct.

The counsel for the appellees insist, that the decree should in this respect be corrected and then affirmed without costs against the appellees. It is true, that in certain cases this Court as well as the Court of Appeals of Virginia does correct and affirm decrees of the courts below. See Conner v. Fleshman, 4 W. Va. 693; Pumphry v. Brown, 5 W. Va. 110; Price v. Thrash, 30 Gratt. 530; Horton v. Bond, 28 Gratt. 815.

But cases when this has been done are very different from the case before us. Here the court below has erroneously adjudged that two of the appellees are personally bound for a sum exceeding $25,000.00, and it is strenuously insisted by the appellees’ counsel that the court committed no error in so deciding. The only manner, in which the appellees could have this error corrected, was by appeal from the decree. This they have done, and they are entitled in justice to have it reversed and to recover their costs incurred in the appellate court.

The decree of the Circuit Court of February 1, 1887, refusing to remove the cause to the Circuit Court of the United States must be affirmed; but the decree of October 19,1887, must be reversed, and the appellants must recover of the appellees their costs; and this cause must be remanded to the Circuit Court of Berkeley, to be there proceeded with according to the principles laid down in this opinion and further according to the principles governing courts of equity.

Reversed. RemaNded.