Board of Com'rs of Van Wert County, Ohio v. Peirce

• Decision Date: 29 December 1898
• Citation: 90 F. 764
• Parties: BOARD OF COM'RS OF VAN WERT COUNTY, OHIO, v. PEIRCE.
• Court: U.S. District Court — Northern District of Ohio

90 F. 764

BOARD OF COM'RS OF VAN WERT COUNTY, OHIO, v. PEIRCE.

United States Circuit Court, N.D. Ohio, Western Division.

December 29, 1898

Thomas J. Trippy, for commissioners.

Browb &amp Geddes, for receiver.

TAFT Circuit Judge.

The petition in this case was originally filed in the common pleas court of Van Wert county, Ohio. It prayed for an injunction against R. B. F. Peirce, receiver of the Toledo, St. Louis & Kansas City Railroad Company, appointed by this court, to prevent him from building anew a railroad bridge over the Little Auglaize river, in Van Wert county Ohio, on the ground that the piles driven to support the bridge would unduly obstruct the flow of the water in the stream, and injure a county highway and the property of farmers lying in the valley of the river. A temporary injunction was issued ex parte by the probate judge in the absence of the common pleas judge from the county. Counsel for the receiver applied to this court for an order against the county commissioners to show why they should not be attached for contempt of court for interfering with the possession of the receiver of this court by injunctive process. The prosecuting attorney of the county appeared at the hearing of the application, and the court, being satisfied that the petition was filed in good faith, made an order authorizing the commissioners to bring the suit against the receiver of the court, and ratifying the suit as brought as under such authority. Thereafter, and before the receiver was required to answer under the Code of Ohio, a petition was filed by the receiver in the common pleas court for Van Wert county, praying for a removal of the cause to the circuit court of the United States for the Northern district of Ohio the Western division. A proper bond with sufficient security was tendered the common pleas court, but that court declined to make the order of removal, on the ground that the cause was not removable. The counsel for the receiver nevertheless filed a transcript in this court, and now makes a motion to dissolve the preliminary injunction, on the theory that the cause is removed and that this court has jurisdiction thereof.

The first question to be disposed of it the question of jurisdiction. The petition for removal stated three grounds upon which the removal ought to be had. The first ground was that the action against the receiver was necessarily ancillary to the main suit in which the receiver was appointed in this court; the second ground was that the suit arose under the laws and constitution of the United States and the third was that the receiver was a citizen of Indiana, and that the complainants were citizens of the state of Ohio, at the time of the bringing of this suit. Since the suit was removed, the receiver, R. B. F. Peirce, has resigned, and a citizen of Ohio, Samuel Hunt, has been appointed in his stead. Whether this change in receivers would affect the jurisdiction of this court, once attaching, is a question which I need not discuss, because...