Bank v. Turnbull Co
Decision Date | 01 December 1872 |
Citation | 21 L.Ed. 296,83 U.S. 190,16 Wall. 190 |
Parties | BANK v. TURNBULL & CO |
Court | U.S. Supreme Court |
ERROR to the Circuit Court for the District of Virginia; the case being thus:
By the statute law of the State just named, it is enacted, that when an execution has been levied, and a party other than the defendant asserts a claim to the property levied on, the sheriff, before proceeding to sell, may require of the plaintiff an indemnifying bond, upon the delivery of which the claimant of the property may execute 'a suspending bond,' the effect of which is to delay the sale until the claim thereto can be adjusted. If the claimant desires that the property should remain in the same possession as when the levy was made, he may execute 'a forthcoming bond,' and thereupon the property remains in such possession at the risk of the claimant. This is the statute remedy to try in such case the right of property, and is termed an interpleader.
This statute being in force, the First National Bank at Alexandria, Virginia, obtained a judgment in the State Circuit Court for the county of Alexandria, against Abijah Thomas for $4700, with interest and costs. Upon this judgment an execution issued and was levied upon some cotton at Alexandria. Certain persons, to wit, Alexander and John Turnbull, citizens of the State of Maryland, with Alexander Reach, a citizen of the State of New York, trading together as Turnbull & Co., asserted a claim as owners of the property thus levied on, and, thereupon, the sheriff, before proceeding further under his levy, demanded of the plaintiff in the execution an indemnifying bond, which demand was complied with. Turnbull & Co., then caused to be executed both a suspending and forthcoming bond, thereby preventing a sale of the property levied on. Under authority of the statute, the Circuit Court of Alexandria, in which the judgment was rendered, upon the petition of Turnbull & Co., as claimants of the property, entered an order, directing an issue to be tried by a jury, to determine the right to the property thus levied on, and in such order adjudged that Turnbull & Co. should be plaintiffs on the trial of the issue. Before any further action, however, was taken under this order, Turnbull & Co. filed a petition to said court, praying for a removal of the suit to the Circuit Court of the United States for the District of Virginia. This petition was filed in virtue of the act of Congress of March 2d, 1867, which enacts:
The application to the State court was refused, and Turnbull & Co. thereupon petitioned the judge of the District Court at chambers for a mandamus to compel the removal. This being granted, the case was brought into the Circuit Court and there docketed.
Upon the calling of the case there, a motion was made by the counsel for the bank to dismiss the same for want of jurisdiction, which motion was overruled, and thereupon, a written stipulation was signed by the counsel of the respective parties providing that a jury should be waived, and the cause submitted to the decision and judgment of the court. Upon a full hearing of the case under such submission, the court decided, that the property in controversy was not liable to the execution of the bank, and gave judgment in favor of Turnbull & Co., with costs. To that judgment a writ of error was sued out from this court.
The record did not show that any process had been issued or declaration filed against the bank; or that the bank had pleaded, demurred, or otherwise answered.
On the calling of the case here, after the judges had looked at the record, the Chief Justice signified to the counsel that the court was not satisfied that the case had been one for removal under the act of March 2d, 1867, to the Circuit Court, and directed them to speak to that point.
Mr. H. O. Claughton, for the plaintiff in error, argued that this was so, and that the Circuit Court below ought not to have received it, but to have left it with the County Court of Alexandria. The statutes, he argued, authorized the transfer of nothing but 'a suit;' and in West v. Aurora City,1 this court had decided that the only sort of suit removable from a State court to the Federal court, was a suit regularly commenced by process served upon the defendant. There was nothing of that sort here. What was transferred was, in fact, not 'a suit,' but an incident to a suit, a collateral question springing out of it. That a proceeding incidental to another suit is not a 'suit' within the spirit of the act, was settled by this court in Gwin v. Breedlove,2
Mr. F. L. Smith, contra:
In The City Council of Charleston v. Weston,5 the question arose as to whether or not a prohibition was a suit within the meaning of the 25th section of the Judiciary Act. Marshall, C. J., in answer to this question, speaking for the court, says of the word suit:
...
To continue reading
Request your trial-
Braithwaite v. Jordan
...v. Dillon, 22 Fed. 1;Buford v. Strother, 10 Fed. 406;Pratt v. Albright, 9 Fed. 634;Poole v. Thatcherdeft, 19 Fed. 49;Bank v. Turnbull, 16 Wall. 190. This action is not in any sense a proceeding to enforce, nor is it in any manner connected with the enforcement of, the judgment in the admira......
-
Darling's v. Chrysler Grp., LLC
...Circuit ordered the district court to remand the case to Maine's Superior Court, Armistead, 49 F.3d at 47–48, straightforwardly applying the Turnbull–Barrow doctrine, which prevents parties from removing “auxiliary” suits to enforce or nullify judgments as if they were “independent and sepa......
-
Mach v. Triple D Supply Llc
...with the original suit as to form an incident to it, and substantially a continuation of it”); First Nat. Bank v. Turnbull & Co., 83 U.S. (16 Wall.) 190, 195, 21 L.Ed. 296 (1872)(“Conceding it to be a suit, and not essentially a motion, we think it was merely auxiliary to the original actio......
-
Community Ins. Co. v. Rowe, C-3-98-422.
...or incidental to another action, and such proceedings are not removable to federal court." Id. at 109, citing Bank v. Turnbull, 83 U.S. (16 Wall.) 190, 195, 21 L.Ed. 296 (1872); Federal Savings and Loan Ins. Corp. v. Quinn, 419 F.2d 1014, 1018 (7th Cir.1969); see McCane v. McCane, 47 F.Supp......