122 Ga. 226 | Ga. | 1905
This case comes here on exception to a judgment of removal of a cause from the superior court of Bulloch county to the circuit court of the United States for the southern district of Georgia. The case in the State court was an equitable petition instituted by Annie Palmer, Alice Palmer, and Cornelia P. Ackers, residents of the State of Georgia, against Willie Lee Inman, of New York, and James E. Hogan and W. S. Pretorius, residents of Georgia. The petition alleged, that on November 24, 1903, Carolyn P. Cumming, as administratrix of one Palmer, obtained a judgment in Bulloch superior court against James E. Hogan for $250, besides interest, attorney’s fees, and costs; that a fi. fa. issued upon the judgment, upon which a return of nulla bona was duly made by the levying officer; that Carolyn P. Cumming, as administratrix, assigned the judgment to the plaintiffs, and that they are now the legal owners thereof. The petition further states, that on October 26,1891, Carolyn P. Cumming obtained a judgment against James E. Hogan for $6,000, besides interest, attorney’s fees, and costs, and at the same time a judgment was rendered against James E. Hogan in favor of Orlena Carter for $3,500, besides interest, attorney’s fees, and costs; that the debts represented by these last two named judgments were secured by title to lands (specifically described) located in Bulloch county; that the plaintiffs in fi. fa. caused their executions to be levied on the land, after. filing their deed thereto in the clerk’s office, and pending the levy Hogan borrowed from Willie Lee Inman $11,000, and to secure this loan made her a security deed to the property. At the same time, Hogan also transferred to one Curry, her agent, one hundred and twenty-five shares of the capital stock of the Dover & Statesboro Railroad,, of the value of $12,500. Notwithstanding said executions were paid out of the money thus borrowed, the fi. fas. were not marked settled on the dockets, but were transferred to Willie Lee Inman, and she has received the rents of the land for eleven years, aggregating $5,000, which amount, together with the dividends on the railroad stock, was more than sufficient to pay off and discharge all
It is clear that as Pretorius was but the agent of the non-resident defendant, he was only a nominal party. The amount involved is in excess of $2,000;-so the question really presented for determination is: Does the plaintiffs’ petition present a separable controversy between them and the non-resident defendant, so as to entitle her to a removal of the cause to the United States court under the various acts of Congress ? The case made by the petition is a proceeding by judgment creditors against a debtor and a lien creditor of this debtor, to subject encumbered property to the payment of a judgment held by the plaintiffs. The purpose of the petition is to force an accounting between Hogan and the New York defendant, so as to ascertain what amount, if any, he is due to this non-resident, and to cancel certain fi. fas. which are of superior date to plaintiffs’ judgment, as well as a security deed, held by this lien creditor. If. the deed from Hogan to Miss Inman is used as a cloak to shield his property from a'levy of plaintiffs’ execution against him, equity will assist them; but all the parties to the fraud must be parties to the proceeding for the equitable enforcement of. plaintiffs’ judgment against the judgment debtor and the particular property sought to be reached. Thus it has been held that the defendant in fi. fa. is a necessary party to a proceeding by a general judgment creditor praying for an injunction and the appointment of a receiver on the ground that a claim has been interposed under a pauper affidavit for the purpose of delay, and that, by depreciation in the value of the property, there is danger of losing the
Nor does the petition present any separable controversy between the plaintiffs and Miss Inman or between the plaintiffs and her codefendant, Hogan. The suit as brought by the plaintiffs is a creditors’ bill to subject encumbered property to the payment of their judgment by a sale and distribution of the proceeds between Miss Inman and themselves, according to théir respective priorities. The petition sets forth but a single cause of action. This is the equitable enforcement of a judgment against property of the judgment debtor, and the cause of action is not divisible Miss Inman and Hogan may have separate defenses to the action, but separate defenses do not create separable controversies within the meaning of the removal act. The relief sought against Miss Inman is necessarily incident to the main purpose of the suit, which is to subject the property of Hogan to plaintiffs’ judgment. The prayer for special relief as against her will not, however, serve to separate this part of the controversy from the rest of the action. Fidelity Ins. Co. v. Huntington, 117 U. S. 280; Rosenthal v. Coates, 148 U. S. 143; Graves v. Corbin, 132 U. S. 571. Unless the petition in the State court shows upon its face a separable controversy, or that the parties plaintiff are citizens of one State and the necessary parties defendant are citizens of another State, there is presented no cause of removal, under the acts of Congress, on the ground of diverse citizenship. Having reached the conclusion that the defendant Hogan was a necessary party defendant •with the non-resident, and that there is no separable controversy