Darton v. Sperry

• Citation: 71 Conn. 339,41 A. 1052
• Parties: DARTON et al. v. SPERRY.
• Decision Date: 04 January 1899
• Court: Supreme Court of Connecticut

41 A. 1052

71 Conn. 339

DARTON et al.

v. SPERRY.

Supreme Court of Errors of Connecticut.

Jan. 4, 1899.

Appeal from city court of New Haven.

Action by William H. Darton and others against Rhodella A. D. A. Sperry. There was a judgment for defendant and plaintiffs appeal. Affirmed.

The plaintiffs, as the next of kin of Matthias L. Darton, deceased, brought this suit against the defendant, as the executrix of Sereno Armstrong. The material parts of the complaint are as follows: "(1) On the 14th day of June, 1875, Sereno Armstrong, then in full life, but now deceased, executed and delivered to Matthias L. Darton his promissory note, payable on demand, one year after date, for value received, for the sum of $2,590.96, with interest payable semiannually. (2) Said note was secured by a mortgage on certain real estate and chattels then owned by said Sereno Armstrong, located on the east side of Quinnipiac river, in what is now the town of New Haven, but was at that time in the town of East Haven. (3) On the —— day of.

January, 1878, said Sereno Armstrong, in collusion with others, and for the purpose of defrauding said Matthias L. Darton out of the money owing to said Darton by said Armstrong, as evidenced by said note, caused a suit to be brought in the superior court for New Haven county against said Darton and himself, to foreclose said mortgaged premises, and received a deed back from the mortgagee after said Darton had been ejected." The answer set up two defenses,—the first denying the above allegations of the complaint, and the second setting up a discharge in bankruptcy obtained by Armstrong. The plaintiffs, to the second defense, filed the following demurrer: "The plaintiffs demur to the defendant's second defense: (1) Because the cause of action in the complaint was expressly exempt from the operation of the United States bankrupt law. (2) Because the note described in the complaint was secured by a lien on real property, and wa? exempt from being proved against the estate of said bankrupt, and said bankrupt could not be discharged therefrom. (3) Because by the bankrupt laws of the United (States then in force, but now repealed, being an act of congress to establish a uniform system of bankruptcy throughout the United States, no claim secured by a lien on real or personal property could be proved against the estate of a bankrupt." The court overruled the demurrer, ordered the plaintiffs to reply, and they replied as follows: "(1) The plaintiffs reply that the discharge in bankruptcy set out in defendant's answer was not a discharge from the note and indebtedness alleged in the complaint. (2) That the said Sereno Armstrong well knew that said discharge in bankruptcy was not a discharge from the debt set out in the complaint, as on or about the day of January, 1878, the said Sereno Armstrong, in collusion with others, as set out in paragraph 3 of the complaint, caused a foreclosure to be brought on a prior mortgage against himself, the said Sereno Armstrong, and the said Matthias Darton, and, after the said Darton and himself had been foreclosed, received a deed back to his wife from said prior mortgagee, Armstrong, and thereupon, at the same time and place, mortgaged said premises to said Armstrong, for substantially the same amount of money as the one foreclosed. (3) Said foreclosure proceedings were brought for no other purpose than to eject said Matthias Darton, whose debt the said Sereno Armstrong well knew had not been discharged by the bankrupt proceedings above described." The defendant denied all the allegations of the reply.

After this, William H. Darton, one of the plaintiffs, filed in said city court, in the usual form, a petition for the removal of said cause to the circuit court of the United States for the district of Connecticut, accompanied by a duly-executed bond for the prosecution of said cause in said circuit court. The ground for said removal was, in the petition, stated as follows: "That the controversy in said suit is upon the construction of a United States statute, to wit, a certain statute entitled 'An act of congress to establish a uniform system of bankruptcy throughout the United States'; that issue is raised by the defendant in manner and form as more fully appears by the record of said suit." The defendant then filed a motion to strike out the petition for removal, on the ground that the plaintiff "should have filed his petition, if he had a right to file any such petition, upon the day following the return day of this cause of action." The defendant also, on the same day, filed in said court a demurrer to said petition for removal, on the ground that: "(1) Under the statute laws governing removal of causes from state courts, only the defendant has the right to remove a cause, and the plaintiff has not, except where the suit is one between citizens of the same state, claiming lands under grants of different states; and this is not such a suit. (2) The statute of the United States governing the removal of causes does not permit the removal of a cause for the reason assigned in the plaintiffs' petition." On May 5, 1898, the court (Bishop, J.) sustained the demurrer, "for reasons given in the demurrer." The plaintiffs filed a written exception to this ruling upon the demurrer. The defendant then filed a notice of the withdrawal of the above motion to strike out the petition for removal. The plaintiffs filed a motion to restore to the record said motion to strike out, which motion the court (Dow, J.) denied. Afterwards, on the 19th day of May, 1898, the plaintiffs filed a written notice in said cause, stating that they had applied to a judge of the circuit court of the United States for the district of Connecticut for a writ of...