15 F. 289 | W.D. Pa. | 1882
This action, originally brought in the court of common pleas of Bradford county, was removed to this court by the plaintiffs. The defendant asks to have the suit remanded to the state court, upon the ground that, before the petition for removal was filed, the plaintiffs had entered a rule of reference, under the state compulsory arbitration law, and the ease had been tried before a board of arbitrators, and an award made against the plaintiffs, who appealed from the award to the court of common pleas. The cause was not at issue, or triable in court, when the rule of reference was entered, and that state of things continued when the petition to remove was filed. Therefore the singlo question presented for solution is, whether the plaintiffs lost their right to remove the suit by reason of the rule of reference, and the trial before and award by the arbitrators.
The act of congress provides that the petition for the removal of a suit shall be filed in the state court “before or at the term at which said cause could be first tried, and before the trial thereof.” Was the proceeding before the arbitrators a “trial” within the mean
The motion to remand must be denied.
This brings us to the consideration of the plaintiffs’ petition for leave to file a bill on the equity side of the court. It appears from the petition that the plaintiff’s cause of action arises out of a series of transactions, extending over a period of about 10 years, under contracts between the parties, whereby the plaintiffs agreed to deliver to the defendant skins and hides, which the defendant agreed to tan and manufacture into leather, and deliver the same to the plaintiffs. The plaintiffs were to sell the leather and pay the defendant the proceeds of sale, after first deducting the original cost of the skins and hides, with a stipulated interest, and certain specified percentages, and insurance, cartage, and inspection charges. Statements of accounts were to be rendered whenever required, in writing, by either party. The contract last in date, viz., the one of November 1, 1875, provided that the plaintiffs should advance to the defendant a specified sum on each hide as delivered, and for such advancements the plaintiffs might .retain out of the proceeds of sale, and if they proved insufficient to reimburse them, the defendant agreed-to make good the deficiency. —....... -- -
The petition alleges that these dealings were made the subject of book-entries and accounts on the part both of the plaintiffs and defendant, the transactions being very numerous and very large in ag
The petition further alleges that from time to time, and during the whole period of said dealings, the plaintiffs rendered accounts to the defendant, which the latter retained without objection, and upon which the plaintiff relied as accounts stated when the pending suit at law (an action of debt) was brought; but that the defendant now denies the correctness of said accounts, and claims that the plaintiffs have not properly accounted for the leather delivered to them, and objects to a very large number of items, etc. Substantially the allegation made is that the controversy involves the whole dealings between the parties, and the investigation and settlement of their entire accounts, in which great complexity exists.
In view of the contract relations between the parties and the character of the accounts involved, I cannot doubt that the controversy, if it be as alleged in this petition, is of equitable cognizance. Bisp. Eq. § 484.
Nevertheless, if the present application were for the transmutation of an action at law into a suit in equity, it could not be entertained. Thompson v. Railroad Co. 6 Wall. 134. But I do not so understand the petition. The prayer is for leave to file a bill in equity; i. e., to institute an independent and original suit on the equity side of the court. To this I see no valid objection. Fisk v. Union Pac. R. Co. 8 Blatchf. 301. The pendency of the present action is no obstacle, for it is well settled that a plea of the pendency of an action at law, though between the same partios and for the same subject-matter, is bad and unavailable in equity. Story, Eq. PI. § 742; Daniell, Ch. Pr. 658.
Leave is granted the plaintiffs to file the proposed bill on the equity side of the court.