Deford v. Mehaffy

• Decision Date: 09 September 1882
• Citation: 13 F. 481
• Parties: DEFORD, HINKLE & CO. v. MEHAFFY and others.
• Court: U.S. District Court — Western District of Tennessee

13 F. 481

DEFORD, HINKLE & CO. v. MEHAFFY and others.

United States Circuit Court, W.D. Tennessee.

September 9, 1882

This is an attachment and injunction bill filed in the chancery court of Hardin county by citizens of Tennessee against a citizen of Louisiana, and certain citizens of Tennessee. It seeks an account of transactions between the plaintiffs and the leading defendant of the sales of quantities of staves, and advances made by the defendant as a commission merchant, and avers that in such accounting the defendant is indebted to the plaintiff in a large amount. It alleges that the other defendants are indebted to the leading defendant in various sums of money and prays for an attachment of this indebtedness on account of the non-residence, and for an injunction against paying to her until the claim of the plaintiff is satisfied. The chancellor's fiat was obtained, and the attachment and injunction were duly issued and levied. The bill was filed March 8, 1880, and publication made according to the state practice, process being served on the resident defendants who were required by the process and allegations of the bill to answer as to their indebtedness to the other defendant. The process was all returnable to the April term 1880. There are two terms a year of that court,-- in April and October. On June 23, 1880, Mrs. Mehaffy answered, and at the subsequent October term, on her application, the cause was continued. Proof was taken, and other orders not necessary to notice were made, and the cause continued by consent at the April term, 1881. Further proof was taken and filed, and orders were made in preparation of the case for trial until the October term, 1882, when Mrs. Mehaffy filed in the state court her petition and bond to remove the cause to this court. The condition of the bond is as follows: 'Now, if the said Moline Mehaffy shall enter and file in the circuit court of the United States, to be held, etc., copies of all process, pleadings, depositions, testimony, and all other proceedings in this cause affecting or concerning said suit then this obligation to be void. ' The transcript being filed, the plaintiffs move to remand the cause for want of jurisdiction, and the petitioner asks leave to amend the bond, or to substitute a proper bond.

Pitts & Cunningham and Bullock & Hays, for plaintiffs.

A. G. McDougall, A. W. Campbell, and McCorry & Bond, for defendant.

HAMMOND D.J.

The learned counsel for the motion here very frankly abandon all the grounds stated by them, except that (1) the application to remove was not in time; and (2) the bond is not conditioned, as the statute requires, 'for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto.'

The first ground insisted on depends on the proper determination of the question, which was the term of the Hardin chancery court at which this cause could be 'first tried?' No order pro confesso has ever been entered in the case against the defendants not answering, and the counsel for the removing defendant insist that there has never been any term at which the cause stood for trial under our state practice, while the plaintiffs' counsel contend that the question must be determined with sole reference to the removing defendant, as to whom the cause was at issue by the answer, under our practice, at the October term, 1880, when the answer was filed; that the other defendants are only garnishees, and their answers or issues made by pro confesso are immaterial now that the leading defendant, whose appearance was to be secured by the attachment, has appeared and answered, and that as to all the defendants the cause stood for trial at the term at which the answer of Mrs. Mehaffy was filed, and at each term thereafter. The object of the attachment was not only to compel the appearance of the non-resident defendant, but likewise to secure the debt of the plaintiffs, and that this is so is apparent from the fact that since her appearance the attachment has not been discharged, nor the injunction dissolved, and could not be against the will of the plaintiffs until their debt is satisfied. These other defendants are in one sense garnishees, no doubt, but not in the technical sense of the argument, in which sense they are not parties to the suit, but merely persons summoned to answer in execution or attachment as to the effects or assets of the plaintiffs' debtor, of which they have knowledge, as in the case of Cook v. Whitney, 3 Woods, 715. Here they are parties to a bill in equity, under injunction and with all the plenary rights of the other defendants to a bill in chancery, not necessary but proper parties, and I have no doubt that they must be so treated in the consideration of the question to be so determined. Nominal parties in the record cannot defeat the right of removal. Texas v. Lewis, 12 F. 1, and note. But these are more than nominal parties, and if they were only such the principle could not apply in determining the question as to the time within which removal could be had under this statute.

It is also clear to my judgment that the act of congress does not limit the consideration of this question to the condition of the record as against the petitioner to remove. The whole case must be for trial as to all the parties, and not a part of it, to bar the right of removal by a lapse of the term. The act says so. Its language is, 'he or they may make and file a petition in such suit in such state court before or at the term at which said cause could be first tried, and before the trial thereof,' etc. Act March 3, 1875, Sec. 3, (18 St. 471;) Bump, Fed. Proc. Sec. 640, p. 224, and notes. Causes are not properly, or should not be, tried piecemeal, and nothing less than unequivocal language should qualify the natural meaning of these words, and thus treat the cause as if the rule were to try it in parcels, and not as a whole. The right to remove is not gone until the trial of the cause, or the end of the term at which it could be first tried as to all the defendants, unless, indeed, the state law, which is not the case with us, permits it to be finally heard in parcels. Was the case, then, ready for trial as to all the parties at the time this petition was filed? It certainly was not. A pro confesso, is not, like a judgment by default at law, where that judgment is the result of a trial, and the end of the case, unless it be opened, as in McCallon v. Waterman, 1 Flippin, 654, and Harter v. Kernochan, 103 U.S. 562. In the case of Graves v. Boon, MSS. (Jackson, 1875, not reported,) I have the opinion of the late commission of appeals, in which the precise question was decided. These cases are not reported, but they are judgments adopted by the supreme court, and while, strictly speaking, not binding as authority, they are entitled, from the character of the judges and their careful adjudications, to all respect from this court, at least. The case stood on pro confesso as to some of the defendants, but as to Nancy Boon there was neither answer nor pro confesso. McKissick, J., says:

'The court being of opinion that as no answer was filed by defendant, Nancy Boon, and no order pro confesso entered as to her, the case was not at issue, and was therefore improperly heard by the chancellor; and for this error the decree of the chancellor should be set aside. * * * But as she is the trustee of these complainants, she is a necessary party to the cause, which cannot be finally heard as to the other defendants without being heard as to her; and not having been so heard, it must be remanded, to the end that it may be regularly brought to a hearing.'

The court cites Mitchell v. McKinny, 6 Heisk. 83, and distinguishes its. The case was, no doubt, according to our practice, properly decided, and would seem conclusive; but it is argued that there the defendant, as to whom there was no pro confesso, was a necessary party, while here they are not. Possibly, if the plaintiffs chose to abandon their security afforded by the attachment and injunction, and dismiss as to these parties, that argument might avail, provided the dismissal were made promptly, and before the defendant filed the petition for removal. But even then I should think that it ought to be done under circumstances that would not prejudice the right of removal. The plaintiff could not let the case stand as to all parties until the term for removal had ended, and then, by dismissing as to some parties, change the status of the cause and defeat the removal by an act of his own, which he might take for that purpose, having misled the adversary party by permitting the case to remain in a removable state until the dismissal was made. It is not necessary to decide this here, and I only allude to it, as I have had occasion to do before, to show that this right of removal is not within the power of the adversary party to defeat by any action of his which results in surprising the party desiring a removal, by a curtailment of the time which, but for that action, he would have under the statute, any more than it is within the power of the removing party to enlarge the time, after the bar of the statute has attached, by some act of his deferring the trial term. Cramer v. Mack, 12 F. 803. It is sufficient for this judgment that these parties were still on the record (and are yet) when the petition for removal was filed, at a time when the cause was not ready for trial. The plaintiffs thought proper to make them parties to secure the debt, as well as to compel the appearance of the main defendant had a right to rely on the record as it stood in this matter of removal, and it is immaterial that the plaintiffs might have made a...