55 F. 353 | U.S. Circuit Court for the District of New Hampshire | 1893
In 1888 the defendants, who were residents of the state of ’New York, were operating a brickyard in Ep[piug, Y, IX., under the name oí the Epping Brick Company. In 1889 the plaintiff, who was an adjoining landowner, brought an action at law in the state court against Bannigan, the managing partner, alone, alleging, in substance, that he was unlawfully damaged by smoke and noxious vapors arising from the brick manufactory, in which, action there was judgment for the plaintiff. Later the same plaintiff brought another action at law against the same defendant, alleging the same kind of a grievance at a subsequent period, and still later a proceeding in equity against both partners and Bannigan individually, setting up the former judgment, and the pend-ency of the later action at law, and praying for consolidation, perpetual injunction, and the assessment and recovery of damages accruing' subsequent to the proceedings at law, by reason of the wanton and reckless maimer of doing business, claimed in the sum of
A proceeding in equity in aid of an action or judgment at law is a common remedy, and often employed to regulate, execute, and perfect rights appurtenant to land previously determined at law, and a rule which, by removal, should withdraw the use of this auxiliary remedy from, the court which determined the right, would seriously interfere with the ordinary administration of justice in the state courts. The proceeding under consideration in its main feature is not an original bill to ascertain and regulate the use, but is a proceeding in equity based upon the prior proceedings and judgment at law, and as such is not removable. The right having been established at law in a case not removable, a subsequent proceeding in equity to regulate or perfect the right by injunction is ancillary to, or in aid thereof; or in other words, in a sense, at least, a part of the original proceeding. The Charter Oak Fire Ins. Co. Case, 6 Blatchf. 208, relied on by the defendants, was an original bill to reform a contract on the ground of mistake, and, although such contract was the basis of a pending action at law, there had been no judgment. Unquestionably, courts of equity have original jurisdiction to correct errors of this character, or to set aside judgments on the ground of fraud, and doubtless original proceedings of this nature are removable, but there is a broad difference between an original bill based upon independent ground for equitable relief, and a bill in aid of judgments and proceedings at law to regulate and perfect rights already ascertained. Bank v. Turnbull, 16 Wall. 190; Barrow v. Hunton, 99 U. S. 80; Bondurant v. Watson, 103 U. S. 281; Cortes Co. v. Thannhauser, 9 Fed. Rep. 226; Buford & Co. v. Strother, 10 Fed. Rep. 406; Stackhouse v. Zunts, 15 Fed. Rep. 481; Filer v. Levy, 17 Fed. Rep. 609; Poole v. Thatcherdeft, 19 Fed. Rep. 49; King v. Shepherd, 20 Fed. Rep. 337; Wolcott v. Smelting Co., 34 Fed. Rep. 821. The fact that West, one of the defendants in the ancillary proceeding, was not a party defendant to the original action at law, which related to the same business, does not change the nature of the proceeding, or relieve it from the operation of the rule of law stated. Bringing in a new party defendant, who was a partner in the business sought to be regulated, does not make this proceeding any less a part and parcel and continuance of the original litigation. Wolcott v. Smelting Co., supra.
The defendants place stress upon the fact that the plaintiff in the equity proceeding claims damages in the sum of $3,000 for the alleged subsequent, unreasonable, wanton, and reckless conduct in connection with' the management of the business, and contend that such claim or allegation creates a suit removable within the meaning of the federal statutes. The effect of this claim for damages by reason of alleged wanton conduct subsequent to the proceedings at law and before injunction, although it relates to the same business, is not-altogether free from doubt. I am inclined, however, under the circumstances of this case, to view it as not con-