Ex parte Relmar Holding Co., 203.

• Decision Date: 07 December 1932
• Docket Number: No. 203.,203.
• Citation: 61 F.2d 941
• Parties: Ex parte RELMAR HOLDING CO., Inc. Ex parte MANHATTAN RY. CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

61 F.2d 941 (1932)

Ex parte RELMAR HOLDING CO., Inc.

Ex parte MANHATTAN RY. CO. et al.

No. 203.

Circuit Court of Appeals, Second Circuit.

December 7, 1932.

C. D. Williams, of New York City, for the application.

Nathan L. Miller, of New York City, opposed.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

These motions are made upon two petitions for a writ of prohibition forbidding the Circuit Judge, designated under section 22 of title 28, USCA, to hear the suit of American Brake Shoe Company v. Interborough Rapid Transit Company; and the District Court, to entertain it. They pray incidentally a mandamus requiring the court to dismiss the bill. One petition is made by a note holder of the Interborough Rapid Transit Company; the other, by the Manhattan Railway Company (whose control had passed into new hands), a committee of its shareholders, one individual shareholder, and a bond and note holder of the Interborough Rapid Transit Company. So far as the petitioners challenge the jurisdiction or rulings of the Circuit Judge personally, we have already dealt with all the pertinent questions in our opinion filed herewith in Johnson v. Manhattan Railway Company, 61 F.(2d) 934. So far, however, as they attack the jurisdiction of the District Court to entertain the suit at all, it does not dispose of their petitions. That attack is upon the same lines as proved unsuccessful in Re Metropolitan Railway Receivership, 208 U. S. 90, 28 S. Ct. 219, 52 L. Ed. 403, that is, that recourse to the District Court was by "collusion" of the parties. Prohibition and mandamus they allege to be their only method of appeal, because they cannot safely intervene under Equity Rule thirty-seven. As to the procedure adopted we may follow the same course as the Supreme Court in Re Metropolitan Railway Receivership; if the petitions should be dismissed on the merits, we need not consider the propriety of the remedy.

The bill contains the conventional allegation that the plaintiff had presented its claim to the railroad, demanded payment and been refused. The Supreme Court said that this created a "controversy" under section 41 (1) of title 28, USCA, and gave the District Court jurisdiction. The petitioners there had made the same general charges of "collusion" and prearrangement as here; but these did not avail against this part of the bill, which was not denied. Its truth is equally unchallenged here, and in all probability could not be. In such circumstances "collusion" means no more than that the parties have wished to invoke the powers of the District Court; and when the facts exist upon which these depend, it is no objection that they have. To defeat that jurisdiction it must be shown that its foundation is unreal; not that the parties, having an option, prefer the federal tribunal. Unless the Supreme Court has shown a disposition to recede from its former position, nothing is left open for us.

The argument is that Harkin v. Brundage, 276 U. S. 36, 48 S. Ct. 268, 72 L. Ed. 457, and Michigan v. Michigan Trust Co., 286 U. S. 334, 52 S. Ct. 512, 76 L. Ed. 1136, have shown such a disposition. The opinions in thoses cases did indeed say that such suits were subject to abuse, and Harkin v. Brundage in some of its language at least intimated, if it did not positively declare, that if the objection were taken in limine, it should be upheld....