Abeel v. Culberson

• Decision Date: 12 May 1893
• Citation: 56 F. 329
• Parties: ABEEL v. CULBERSON.
• Court: U.S. District Court — Eastern District of Texas

56 F. 329

ABEEL v. CULBERSON.

United States Circuit Court, E.D. Texas.

May 12, 1893

T. D Cobbs, E. H. Graham, and E. B. Kruttschnitt, for complainant.

R. L Batts, Asst. Atty. Gen., for defendant.

Before A. P. McCORMICK, Circuit Judge, and DAVID E. BRYANT, District Judge.

McCORMICK Circuit Judge, orally .

In the matter of the motion we have been hearing yesterday and to-day, we are of the opinion that the suit in Hardeman county, brought by the state against the Houston & Texas Central Railway Company and George E. Downs, to which the receiver of the circuit court for the eastern district of Texas made himself a party, under article 4788 of the Texas Revised Statutes, claiming that he, as such receiver, was the real owner of the land involved in the suit, was a suit, as the issues were presented in the pleadings at the time the motion to remove was made, which could have been brought in the United States circuit court by the state. That the state by presenting in her pleadings the issues between the parties as they appeared in the record when the petition for removal was presented, would have made a case of which the circuit court has jurisdiction. Said suit, in our judgment, presents issues that depend on the construction of the constitution and laws of the United States, or, in the language of the statute, arising under the constitution and laws of the United States, referred to in common language as federal questions. It is clear to us that the record in that case does present such federal questions. Those matters were well presented to the state court in a petition by all the defendants, accompanied by the proper bond, sufficiency of which is not questioned. This ousted the jurisdiction of that court, and the subsequent filing of the transcript of the record in the circuit court for the northern district of Texas completed a valid removal of the cause to that court and the state court could proceed no further with it.

We have no difficulty in holding that the state, when she brings a suit against citizens or other parties, accepts all the conditions that affect ordinary suitors, except that no affirmative judgment, sa for the payment of costs, can be had against her. The eleventh amendment to the constitution only exempts her from suits commenced or prosecuted by others. When she institutes a suit against a citizen, and cites him to answer, she cannot draw the mantle of sovereignty about her, and bid him, thus challenged, contend with her under any disability imposed by the eleventh amendment; she comes into court as any other plaintiff, so far as her opponents' right to defend is concerned. Therefore we consider that the motion for injunction made in this case should be viewed in the same way exactly as if the attorney general in his individual capacity was the party, and the state was not the party. Whether the state is the party or not makes no difference in this matter. She being a party plaintiff to the litigation, the suit one of her own voluntary instituting, and now properly removed to and pending in the circuit court, this motion should be determined as if she were an ordinary suitor.

We do not doubt the power of the circuit court to enjoin parties from proceeding in the state court in the removed causes where the state court has refused to surrender jurisdiction. We are mindful of the fact that in very many cases where the state courts have so refused to surrender jurisdiction either the parties have refrained from asking the circuit court to stay subsequent proceedings by the state court, or the circuit court has declined to grant such relief when asked. In our view, it must, however, be conceded that the cases cited by counsel for the complainant in this motion from the supreme court and from eminent judges at the circuit, amply support and settle the power in the circuit court to grant such relief in a proper case, and indicate and illustrate the kind of case that will warrant, and even require, the granting of such relief. The delicacy of the situation justifies the exercise of a large discretion, and has been rightly judged to demand from the circuit court the exercise of such conservative and provident action as has usually resulted in their declining to exercise the conceded power. When, however, serious detriment (no mere inconvenience, or customary court costs) is likely to be inflicted on parties by the taking of their property, or other irreparable injury to their interests, not only the right to stay such proceedings by injunction is clear, but the duty becomes imperative. We consider that this application presents such a case. Here is an insolvent corporation whose property was taken into the custody of the circuit court for this district, and is being held by its receiver. It will necessarily, and, it seems to us, very materially, embarrass the circuit court in the exercise of its jurisdiction of this property to have this removed cause proceeded with in the state court. It is not simply an action of trespass to try title, wherein...