108 F. 699 | U.S. Circuit Court for the District of Kentucky | 1901
On the 13th day of May, 1.901, the plaintiff, Youtsey, receiver, moved the court to discontinue, without prejudice, his action against H. H. Hoffman, a citizen of Ohio, upon whose petition alone the case had been removed, and to remand the case as to Henry Eeltman, a citizen of Kentucky; and the motions were then taken under advisement. The court entertains no doubt of the right of the plaintiff, Youtsey, to discontinue his action, and thus abandon his claim to recover, in the pending suit, anything against Hoffman. The authorities upon the point are altogether clear. City of Detroit v. Detroit City R. Co. (C. C.) 55 Fed. 572; McCabe v. Railway Co. (C. C.) 107 Fed. 213. The receiver’s motion, therefore, to discontinue the action as against H. H. Hoffman, is sustained. It seems to the court that there is no force in the. suggestion that the receiver* who brought this suit under the orders of the Campbell circuit court, should not be permitted to discontinue it without showing an authority therefor from that court. That appears to be a matter entirely between the Campbell circuit court and the receiver, with which Hoffman is not concerned; and, besides, it may be presumed that the receiver, through his counsel, has authority to discontinue, without showing any order from the court which appointed him. This court only looks to the parties before it, and does not stop to inquire whether they are influenced by some one else. The motion to discontinue was made and taken under advisement on the 13th day of May, and, the situation being thus, the defendant Hoffman, on the 16th day of May, moved for leave tó file what, under the Kentucky practice, is really an amended answer, but which he denominated a “set-off” against the plaintiff’s claim. Under the circumstances, however, it seems to the court that the motion to discontinue should take precedence, and that the motion for leave to file the amended answer or set-off should not be sustained, and it is accordingly overruled. For the purposes of this motion the justice of the case seems to require that the plaintiff should not be prejudiced by the delay of the court in deciding the motion to discontinue, particularly as, when the set-off is filed, the motion of the plaintiff to discontinue his action would not, if sustained, take the set-off out with it.
The ground for the removal of this action into this court was that there was a separable controversy between Youtsey, a citizen of Kentucky, and Hoffman, a citizen of Ohio, which could be settled, as between them, without the presence of Feltman, or any other defendant, as a party to the action. The court was of opinion that there was such a separable controversy, and upon that ground alone overruled the motion to remand the action to the state court. It might, as an original proposition, be quite difficult clearly to see how anything was really removed into this court except that separable and
For similar reasons this court would seem to have no jurisdiction to set aside the judgment of the state court as against Henry Felt-man, although a few days ago we had occasion to rule very expressly in this case (108 Fed. 693) that the judgment of the state court against Hoffman, obtained in precisely the same way and at the same time as that against Feltman, was palpably and unquestionably void, and sustained the motion to set it aside for that reason. The court was enabled to set aside the judgment against Hoffman because the question of so doing was properly before this court for determination, hut the question as to setting aside the judgment against Feltman does not seem to be within the jurisdiction of this court, all parties to that controversy being citizens of Kentucky. The court is of opinion that the question of setting aside the judgment against Feltman