27 F. 403 | U.S. Circuit Court for the District of Eastern Louisiana | 1886
This suit was instituted in the civil district court of the parish of Orleans for an injunction to prevent infringement of a trade-mark. The petition alleged that the plaintiff was an alien citizen of France, and that the defendant was a citizen of one of the United States. An injunction pendente lite was issued. The defendant filed
In this court the transcript has been filed, and the plaintiff has recast his pleading so as to conform to the equity rules of this court; and in the recast bill the averment is again made of alienage of plaintiff, and the citizenship of defendant, and a case is made that in part arises under the laws of the United States. After the transcript was filed in this court the defendant made a motion to remand the cause to the state court on the ground that both plaintiff and defendant were aliens, the one being a citizen of France and the other of Great Britain. This motion was postponed to allow the complainant to recast his pleadings to enable the court to determine whether the case should go on the equity docket or law docket, or both. Since the pleadings were recast the motion to remand is again made on the same ground of alienage of both parties.
This motion is now for decision, and is refused because (1) when a case is once brought in this court with jurisdiction apparent on the record, the jurisdiction should only be attacked by sworn plea or exception. Equity Rules, 31; Circuit Court Rules, No. 7. See Hoyt v. Wright, 4 Fed. Rep. 168, and the case of Hartog v. Memory, 116 U. S. 588, S. C. 6 Sup. Ct. Rep. 521. (2) Because if the alienage of both parties is established, still the jurisdiction of the court is apparent on the record, as the case is one arising under the treaties of the United States. See Railroad Co. v. Mississippi, 102 U. S. 335. (3) Because as the requisite citizenship to warrant a removal to this court was apparent, on the record, the allegation in the petition for removal of the alienage of the plaintiff and the citizenship of the defendant was a useless averment, and did not operate to hinder the removal from being claimed and operative on the ground that the case was one arising under the public treaties of the United States. See section 3, Act 1875. (4) Because if the case were remanded on the ground claimed, it could be at once removed again to this court, and
The main contention of the defendant is that, if the case remains in this court, his reconventional demand for damages must go on the law side of this court as an independent case, and will be without our jurisdiction because of the fact that both plaintiff and defendant are aliens. It is conceded that the plaintiff’s suit for an injunction and the defendant’s demand in reeonvention constituted but one case in the state court, and it must follow that it comes here as one "case. If it comes here as one case, of which case this court has jurisdiction, then I think it follows that we do not lose jurisdiction because under our practice we try one part of the ease with a jury and the other part without. But however this may be, if the case is properly brought hero for trial, and we find that we cannot follow the involved practice allowed in the state court, and allow a suit for damages f.or the illegal issuance of an injunction to be tried in the same case as the injunction suit, nor as a part of the saíne case, and we find that we have no jurisdiction thereof, we shall have to dismiss the reconventional demand for damages without prejudice. This result will not defeat the plaintiff’s right -to remove a removable case; perhaps he may have removed the case for the purpose of taking advantage of our different practice. See Ex parte Fisk, 113 U. S. 720; S. C. 5 Sup. Ct. Rep. 724.
