Ayres v. Wiswall

• Decision Date: 10 November 1884
• Citation: 112 U.S. 187,5 S.Ct. 90,28 L.Ed. 693
• Parties: AYRES and others v. WISWALL and others
• Court: U.S. Supreme Court

112 U.S. 187

5 S.Ct. 90

28 L.Ed. 693

AYRES and others v. WISWALL and others.

November 10, 1884.

John Atkinson and John F. Dillon, for appellants.

J. H. McGowan and W. T. Mitchell, for appellees.

WAITE, C. J.

This is an appeal, under section 5 of the act of March 3, 1875, c. 137, (18 St. 470,) from an order of the circuit court remand- ing a case which had been removed from a state court. The suit was brought on the fifteenth of April, 1879, in the circuit court of Huron county, Michigan, by the appellees, citizens of New York, against Ebenezer Wiswall, also a citizen of New York; Ebenezer R. Ayres, a citizen of Ohio; Frederick S. Ayres, James S. Ayres, Charles G. Learned, citizens of Michigan, and many others whose citizenship does not appear, to foreclose a mortgage executed by Frederick S. Ayres, Charles G. Learned, and Ebenezer Wiswall, to Catharine E. Wiswall, a citizen of New York, to secure a debt owing by them jointly to her. This mortgage and the debt it secured were assigned to the appellees before the suit was brought. After the mortgage was made, Ebenezer Wiswall contracted in writing to sell to Frederick S. Ayres his interest in the mortgaged property, subject to the mortgage debt, which Ayres assumed to pay as part of the consideration money. Afterwards, Learned sold and transferred to Ebenezer R. Ayres all his remaining interest in a part of the mortgaged property, subject to the mortgage, which Frederick S. Ayres, James S. Ayres and Ebenezer Ayres bound themselves to pay. Between the time of the execution of the mortgage and the commencement of the suit, the mortgagors and their grantees sold and conveyed a large number of the parcels of the mortgaged property to various persons whose citizenship does not appear. All these purchasers were made parties. The bill, after setting forth the execution of the mortgage, and the various transfers and conveyances, and giving credit for certain payments on the mortgage debt, prayed that Frederick S. Ayres, Charles G. Learned, and Ebenezer Wiswall be decreed to pay the amount found due on the mortgage debt, and in default that the property, or so much thereof as was necessary, might be sold and the proceeds applied to that purpose. It further prayed for execution against Frederick S. Ayres, Charles G. Learned, Ebenezer Wiswall, and James S. Ayres for any balance of the debt which might remain due after the property was exhausted. Ebenezer Wiswall and Learned filed separate answers to the bill, in which they admitted the execution of the mortgage and the debt for the security of which it was given, and asked that their respective grantees, who had assumed the payment of the mortgage debt, might be decreed to be first personally liable for any money decree that should be rendered. Frederick S. Ayres and James S. Ayres also answered, denying that the original debt for which the mortgage was executed amounted to as much as it was stated in the mortgage to be, and averring that other payments had been made beyond those stated in the bill. They insisted that there was not more than $20,000 due, and this they offered to pay.

In this state of the pleadings, Frederick S. Ayres, James S. Ayres, and Ebenezer R. Ayres, on the twenty-eighth of November, 1879, filed in the state court a petition, accompanied by the necessary bond, for the removal of the cause to the circuit court of the United States for the Eastern district of Michigan. The parts of the petition material to the present inquiry are as follows: 'That said complainants are, and were at the time said suit was commenced, citizens of New York; that your petitioners Frederick S. Ayres and James S. Ayres are, and were when said suit was commenced, citizens of Michigan, and your petitioner Ebenezer R. Ayres is, and was when said suit was commenced, a citizen of Ohio; that in said suit, which is for the foreclosure of a mortgage on a large tract of land in the Eastern district of Michigan, there is a controversy which is wholly between said complainants and these petitioners, and which can be fully determined, as to them, without the presence of the other defendants.' Under this petition the case was taken to the circuit court of the United States, where it remained until the twenty-ninth of December, 1881, and until after a hearing, and a decree finding the amount due on the mortgage and ordering a sale of the property. While the case was in the United States court, Ebenezer R. Ayres filed an answer, presenting substantially the same issues as those of Frederick S. and James S., in the state court. On the twenty-ninth of December, 1881, and during the same term in which the final decree was rendered, the following order was made: 'It appearing to the court that the record in this cause was improperly removed to the court from the circuit court of the county of Huron, in chancery, and that this court hath not jurisdiction of the cause, it is ordered that the proceedings had thereon in this court be, and the same are hereby, set aside and held for naught, and that the said cause be remanded to the said circuit court for Huron county, in chancery, and that this cause be dismissed from this court for want of jurisdiction.' From this order the present appeal was taken on the twelfth of November, 1883.

The fifth section of the act of March 3, 1875, makes it the duty of the circuit court of the United States to remand a cause which has been removed from a state court when it shall appear to the satisfaction of the court, at any time after the suit has been removed, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the court. For this purpose the circuit court retained its power over the suit and the parties until the end of the term at which the final decree was rendered. The parties were not, in law, discharged...