Alley v. Nott

• Decision Date: 21 April 1884
• Citation: 23 L.Ed. 491,111 U.S. 472,4 S.Ct. 495
• Parties: ALLEY v. NOTT
• Court: U.S. Supreme Court

111 U.S. 472

4 S.Ct. 495

23 L.Ed. 491

ALLEY v. NOTT.

April 21, 1884.

A. A. Abbott, for appellants.

H. F. Averill and Geo. F. Betts, for appellee.

WAITE, C. J.

This is an appeal from an order of the circuit court remanding a case removed from a state court. The suit was begun on the second of March, 1883, in the supreme court of New York by Eliphalet Nott, a citizen of New York, for himself and all others who should come in and be made parties to the action and contribute to the expenses, against Las Nueve Minas de Santa Maria Gold & Silver Mining Company, a New York corporation, John B. Alley, a citizen of Massachusetts, and certain other persons, some of whom were citizens of Illinois, and others, citizens of New York. Nott was the holder of 300 shares of the stock of the mining company, and the several individual defendants were trustees and directors. The prayer of the complaint was, in substance, that the individual defendants might be adjudged to be trustees as to the amount in money represented by 1,000,000 shares of the capital stock of the company, and collectively and severally decreed to account concerning the same, and that they might also be severally adjudged to account for the gains and profits received by each of them from the sale of the stock.

The summons required an answer to the complaint within 20 days after its service. Two of the defendants were never served, and they have never appeared. Four of the individual defendants, including Alley, appeared on the twenty-ninth of March, and filed separate demurrers to the complaint on the ground 'that it did not state facts sufficient to constitute a cause of action.' On the ninth of June, during a special term of the court begun on the first of that month, 'the issues of law raised by the demurrers of the defendants * * * having been brought on for trial,' and argued by counsel, it was 'ordered that the said demurrers be overruled, and that the plaintiff have judgment thereon accordingly for costs, with leave to said defendants demurring, within twenty days to withdraw said demurrer and answer the complaint upon payment of costs;' and that if the defendants fail to withdraw their demurrers and answer within the time allowed, a final judgment be entered against them for the relief to which the plaintiff is entitled; the form of the judgment to be settled by the judge. On the thirteenth of June all the defendants who had demurred gave notice of appeal to the general term of the court. On the twenty-third of June the defendants gave notice that they would move on the first of July for a stay of execution on the interlocutory judgment until the appeal could be heard, and on the twenty-ninth of June the time for answering the complaint was extended until 10 days after the determination of this motion. On the thirteenth of July another of the defendants appeared and filed a demurrer to the complaint. On the first of August the defendants who had appealed withdrew their appeals and also their respective demurrers, and paid the costs awarded to the plaintiff by the interlocutory decree, and the costs of the appeal. Separate answers were filed on the same day by each of the several individual defendants whose demurrers had been overruled, and on the next day, August 2d, Alley presented to the court a petition for the removal of the suit to the circuit court of the United States for the Southern district of New York. In this petition the citizenship of Nott, the company, and Alley are stated, and it is then averred, 'that the controversy in this suit or action, so far as it respects or is between the plaintiff individually, or as representing the said mining company and this petitioner, is wholly between citizens of different states, and that the same can be fully determined and a final determination of the controversy in said action can be had, so far as concerns the plaintiff and this petitioner, without the presence of either of the other defendants or parties in said cause.' It is then stated 'that since the service of said answer there has been no term of the court at which this action could have been tried.' The suit was docketed in the circuit court at once, and on the eleventh of October a motion was made to remand. This motion was granted on the twenty-first of December, and from an order to that effect the appeal was taken.

In our...