32 F. 641 | U.S. Circuit Court for the Northern District of Georgia | 1887
During the hearing of this case counsel for defendants suggested to the court that the case was improperly removed to this court,
“The controversy in the original case between Walter E. Bondurant and Albert Bondurant et al., had been ended by a final judgment. The case between Watson and Mrs. Bondurant had its origin in that judgment, but it was a new and independent suit between other parties and upon new issues. It was a suit in which the plaintiff: sought to be protected against a judgment to which he was not a party, by which his property had been specifically condemned to bo sold to satisfy a claim against others and not against him.”
The complainant in that case, it will be observed, had distinct rights which ho claimed independently of those claimed by any party to the original litigation. The original case had gone to judgment. He sought to be protected against the judgment on account of rights be had that were in no way involved in the controversy between the parties to the original suit.
Here the complainant acquires the control of property, to recover which a suit is pending, and then instead of defending that suit, sets up by bill in equity the same matters he could have pleaded in the original case, and claims the right to remove the case to this court when it could not have been removed by the party from whom he acquired his lights. I do not think he can do so. If the effect of the agreement of March 26, 1881, between these two companies is to unite the management of the companies, it seems to me the argument against removal would bo stronger. Crump v. Thurber, 115 U. S. 56, 5 Sup. Ct. Rep. 1154, and cases cited. Under the fifth section of the act of March 8, 1875, if the court believes the case to have been improperly removed, it should proceed no further, but should remand it to the state court.