89 F. 209 | U.S. Circuit Court for the District of Western North Carolina | 1898
This case comes up on a motion to remand it to the state court. The plaintiff, Herman Mecke, filed a complaint in the superior court of Cherokee county, Y. 0., in behalf of himself and all others, creditors of the Valley Town Mineral Company, who will come in, etc., against that company, the Eoessler & Hasslacker Chemical Company, and E. L. Cooper, Ben Posey, and J. P. Abernathy, trustees. It alleges: A purchase by A. H. Mugford and E. P. Geliy, in the year 1895, from J. W. Cooper, G. K. Welch, and others, of certain lands in Cherokee county, Y. 0., for the sum of $10,000. For this they paid $5,000 in cash, and gave notes for the remainder, secured by deed of trust, in which the defendants Cooper, Posey, and Abernathy were trustees. That these lands were supposed to con lain minerals, especially talc, and that, in order to mine the same successfully, Mugford and Getty on 15th October, 1895, organized a corporation, under the laws of the state of Yew Jersey, known as the Valley Town Mineral Company, a defendant, of which Mugford was made manager; Getty, superintendent; and plaintiff, the president. That on 2d October, 1895, Mugford and Getty executed to plaintiff a paper writing giving him a lien on these lands to secure him his advance of $5,000 towards the purchase money; plaintiff agreeing at the same time to furnish other moneys to pay off the notes for the unpaid purchase money, for $2,500 each, due one and two years after date, one of which has been paid, but by whom is not stated. That subsequently plaintiff assigned all his interest in said paper writing to the Valley Town Mineral Company, it assuming to pay the said several notes for the purchase money. That on 26th September. 1896, Mugford and Getty conveyed all their interest in said lands to the Eoessler & Hasslacker Chemical Company, a corporation of the
It will be observed that this is a creditors’ bill against the Valley Town Mineral Company. It asks for a receiver for this company. It does not pray a sale of the land, but, on the contrary, asks that the operations of the company be continued by the receiver. It prays no judgment against any party but the Valley Town Mineral Company. The summons was issued returnable to the spring term of Cherokee county, at wMch term the complaint was filed. The summons was served upon the Valley Town Mineral Company, by a copy on its treasurer. Service was accepted by Posey, Cooper, and Abernathy, trustees; and a copy summons was served upon a director of the chemical company, of which some notice will be hereafter taken.
Under the practice in North Carolina, the complaint must be filed during the first three days of the term, and defendants must answer some time during that term. During the term, and therefore before time for answering had expired, plaintiff moved for and obtained leave to file an amendment to Ms complaint. In that amendment, after reaffirming every allegation of the original complaint, he avers: That the Valley Town Mineral Company, finding itself without sufficient capital to conduct its business, and not being able to get any mtore advances from plaintiff, sought the aid of the Eoessler & Has-slacker Chemical Company. That the result of this was an agreement between the two corporations, to which also Getty and Mugford were parties, by which the chemical company assumed all the obligations of the Valley Town Mineral Company which plaintiff had theretofore assumed, and took from the mining company, from plaintiff, and from Getty and Mugford an assignment of their interest in the mining lands. The chemical company further agreed to advance all moneys needed by the mineral company in its operations; that the chemical company should handle all the products of the mineral company, and share in the profits, thus constituting it a partner in the business. That, upon complaint on part of the plaintiff as to the terms of the contract, an agreement was prepared by the attorney of
The plaintiff is a citizen and resident of the state of North Carolina. The defendant petitioning is a corporation of the state of New York. Its co-defendants are the Valley Town Mineral Company, averred in the complaint to be a corporation of the state of New Jersey, and certain other persons, who presumably are citizens of the state of North Carolina. The plaintiff and (he defendant petitioning for removal being citizens of different states, one ground for removal is established. And if the jietition has been filed within the proper time, and the controversy between plaintiff and this particular defendant be separable from that with the other defendants, the right of removal is unquestionable; and it occurred, ipso facto, upon the filing of the petition with the bond (to the latter no exception is taken). And this with or without tin; order of the state court to that effect. Kern v. Huidokoper, 103 U. S. 485; Winslow v. Collins, 110 N. C. 120, 14 S. E. 512; Monroe v. Williamson, 81 Fed. 927. This right of removal is not affected by the fact that the defendant goes on and defends himself in the "state court. Insurance Co. v. Dunn, 19 Wall. 214; Removal Cases, 100 U. S. 457. Each court acts on its own responsibility. The adverse1 action of the state court cannot prevent the removal. See Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. 799; Railroad Co. v. Koontz, 104 U. S. 5. So there are two vital questions in ;this case: Was the petition for removal filed within the proper time? Ts there a separable controversy between the plaintiff and this defendant?
1. Was the petition for removal filed within the proper time? Under the acts of congress of 1887 and 1888, the petition must be filed on or before the time has expired within which the defendant must answer the complaint according to the law or the rules of court of the stab court. In the original complaint there is no prayer for judgment whatever against the líoessler & Hasslacker Chemical Company. It is mentioned in (lie body of the complaint but once. There it is
State of North Carolina, Cherokee County.
Be it remembered that on this 17th day of May, A. D. 1897, a superior court of law is begun and held for said county in said court house at Murphy; the Hon. George H. Brown, Jr., judge presiding, and George A. Jones, solicitor, prosecuting in behalf of the state. Comes S. W. Davidson, sheriff of Cherokee county, who returns into court that in obedience to a writ of venire facias he has summoned the following good and lawful men to serve as jurors, to wit, A. L. Carrell and 35 others; and the following proceedings were had:
No. 3. Herman Meeke vs. Valley Town Mineral Company et al.
Plaintiff allowed thirty days to file amended complaint. Each defendant allowed sixty days thereafter to file amended or original answer.
That amended complaint changed the whole aspect of the case, as far as this defendant was concerned. In the original complaint it had no concern, except as the holder of a security upon an attenuated equity of redemption in lands for which a receiver was sought. In the amended complaint it was charged as being responsible for a debt of over $20,000 as the responsible, solvent co-partner in an insolvent concern, — made responsible, too, for a debt antecedent to the alleged co-partnership, by an instrument in writing executed by the Valley Town 'Mineral Company. And this amended complaint was filed, not changing in any respect the averments of the original complaint, but reaffirming and reasserting the same. In the case of Powers v. Railway Co., 169 U. S. 92, 18 Sup. Ct. 264, these facts appeared: The plaintiff began suit in a state court against the defendant railroad company for personal injuries, making as co-defendants the conductor, engineer, and brakeman. Plaintiff was a citizen of Kentucky; the railroad company, a citizen of Virginia. The other defendants were citizens of Kentucky. The railroad company filed a petition and bond for removal, and the record came into the federal court. On motion to remand, the federal court held that there was no separable controversy, and remanded the case; When it got back into the state court the plaintiff amended his complaint by discontinuing
2. Is there a separable controversy? The amended complaint seeks to hold this defendant responsible for the debts of the Valley Town Mineral Company. There are two questions in the case: Is the Valley Town Mineral Company indebted as charged in the complaint? If this be settled-in the affirmative, has this defendant assumed the debts? To the first matter in controversy the Valley Town Mineral Company is necessarily a party defendant. With it this defendant has no concern. To the second matter in controversy the defendant is Hie only contesting party. Every creditor of the Valley Town Mineral Company and this company itself is interested against the defendant. It must fight this contest single-handed and alone. There is a separable controversy. The motion to remand is refused.