Enger v. Northern Finance Corporation

• Citation: 31 F.2d 136
• Parties: ENGER v. NORTHERN FINANCE CORPORATION.
• Decision Date: 01 March 1929
• Court: U.S. District Court — District of Minnesota

31 F.2d 136 (1929)

ENGER v. NORTHERN FINANCE CORPORATION.

District Court, D. Minnesota, Fourth Division.

March 1, 1929.

Edson S. Gaylord, of Minneapolis, Minn., for plaintiff.

Rockwood & Mitchell, of Minneapolis, Minn., for defendant.

SANBORN, District Judge.

In October, 1928, the plaintiff commenced an action in the state district court of Sherburne county, Minn., against the defendant, under section 9556, General Statutes of Minnesota 1923, to determine adverse claims to the northwest quarter of the northeast quarter of section 36, township 34, range 28, in Sherburne county, Minn. The complaint alleges that the plaintiff is the owner of these premises; that the defendant claims some right, title, or interest in or to them, adverse to the plaintiff, which claims are null and void. The plaintiff then prays that the adverse claim of the defendant be adjudicated and determined, and that the plaintiff be decreed to be the owner in fee of the premises. On the 19th day of October, 1928, the defendant prepared its petition and bond for removal, and in the petition alleges that the defendant is a foreign corporation and a nonresident of the state of Minnesota, and that the matter and amount in dispute exceeds the sum of $3,000. The order of removal was signed on October 22d. The defendant filed its answer on November 2, 1928, alleging that it is a citizen of Delaware, and that the amount in controversy exceeds the sum of $3,000. It denies that the plaintiff is the owner or in possession of the land described in the complaint, and admits that the defendant claims some right, title, interest, claim, and lien in, to, and upon the land in question adverse to the plaintiff. The defendant then alleges that on the 19th day of September, 1926, William S. Enger was the owner and in actual possession of this land; that on the 19th day of September, 1926, the defendant recovered judgment in the district court of Hennepin county, Minn., against William S. Enger in the sum of $9,285.55, a transcript of which judgment was, on the 11th day of August, 1928, filed and docketed in the district court of Sherburne county, Minn.; that, under and by virtue of a writ of execution upon the judgment issued out of the Hennepin county district court to the sheriff of Sherburne county, the sheriff levied upon the lands described in the complaint and other lands also the property of William S. Enger; that on the 1st day of October, 1928, the sheriff duly sold all of the lands levied upon by him under the execution to the defendant (then follows a description of these lands in Sherburne county bid in by 40's and a statement of the price paid therefor by the defendant); that the sheriff delivered to the defendant his certificate of such sale, which was recorded on the 3d day of October, 1928, in the office of the register of deeds of Sherburne county; that no redemption of the lands so sold has been made; that on the 23d day of October, 1928, the sheriff returned the execution to the district court of Hennepin county satisfied in the sum of $9,078.92, and unsatisfied as to the remainder.

"As a further defense and as a counterclaim and cause of action against the plaintiff," the defendant alleges, in addition, that on the 15th day of October, 1926, William S. Enger and his wife, the plaintiff, for the purpose of hindering, delaying, and defrauding his creditors, and particularly the defendant, executed to his daughter, Martha V. Enger, a deed of part of these lands; that, at the same time and as part of the same transaction and for the same fraudulent purpose, Martha V. Enger executed to the plaintiff a deed to the northwest quarter of the northeast quarter of section 36, township 34, range 28, the east half of the southeast quarter of section 25, township 34, range 28, and the southwest quarter of the southeast quarter of section 25, township 34, range 28, which were included in the deed from William S. Enger to Martha V. Enger; that both of these deeds were recorded in the office of the register of deeds of Sherburne county, Minn., on the 19th day of October, 1926; and that both were executed without consideration. The defendant then alleges that, after the commencement of this action, and on the 18th day of October, 1928, the plaintiff commenced a registration proceeding, under sections 8247-8329 of the General Statutes of Minnesota for 1923, in the district court of Sherburne county, Minn., to register the title to the northeast quarter of the southeast quarter and the southeast quarter of the southeast quarter and the southwest quarter of the southeast quarter of section 25, township 34, range 28; that the object and purpose of the registration proceeding is to divide and split the defendant's right and cause of action for the cancellation of the deeds described in the counterclaim, and to deprive the defendant of its right to have such cause of action tried and determined in the courts of the United States, by reducing the amount involved in a single action or proceeding below the sum of $3,000; that it is the intention and purpose of the plaintiff to hasten the trial of the action in the district court of Sherburne county and to secure a determination thereof favorable to the plaintiff before this action can, in the usual course, be tried and determined in the District Court of the United States; that the plaintiff will, unless restrained by the order and injunction of this court, use all means within her power so to proceed in the district court of the state before this action can be tried in the District Court of the United States; that the facts respecting the plaintiff's title and source of title, and the defendant's right and lien as to the land described in the complaint in this action, are the same as the facts respecting the plaintiff's title and source of title and the defendant's right and lien as to the land described in the registration proceeding. The defendant then prays judgment that the plaintiff take nothing by her action; that the deed from William S. Enger and Anna M. Enger, his wife, to Martha V. Enger, and the deed from Martha V. Enger to Anna M. Enger be declared null and void and of no effect, and that the record of said deeds be canceled; confirming and establishing the title of the defendant as purchaser of the land; and for a writ of injunction restraining the plaintiff, during the pendency of this action, from taking any steps in the prosecution or trial of the registration proceeding.

It appears from the answer that three of the 40's which have been fraudulently conveyed to the plaintiff, Anna M. Enger, by Martha V. Enger, had been bid in at the sheriff's sale by the defendant for $800 each, and the fourth 40 had been bid in for $700, making $3,100 in all. The one 40 described in the complaint in this action was bid in for $700, and it is conceded that the value of that 40 is not more than $700.

Section 71, tit. 28, USCA, so far as we are concerned, provides that any suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction, in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state.

Section 41(1), tit. 28, USCA, provides that a District Court of the United States shall have original jurisdiction of all suits of a civil nature, at common law or in equity, where the matter in controversy exceeds, exclusive of interest and costs, the sum of value of $3,000, and is between citizens of different states.

It is claimed by the plaintiff that this suit is one which involves no more than $700, while the contention of the defendant is that it involves at least the sum of $3,100. The plaintiff's theory is that it is an action to quiet title to 40 acres of land, while the theory of the defendant is that it is virtually a suit to have determined the questions of the validity of the deed from Martha V. Enger to Anna M. Enger, whereby Anna M. Enger claims to have secured the title to this 40 and three other 40's, the combined value of which is $3,100, and the invalidity of the execution sale to the defendant.

An investigation of the authorities on the questions presented has required more time than it would probably take to try several of such cases upon the merits; but the parties are entitled to a determination of the questions involved.

One point which seems to have been well settled by the authorities is that, to render an action removable to a federal court, it is necessary that it could have been originally brought in the federal court. See cases cited in note 73, tit. 28, § 71, p. 44, USCA. See, also, Kansas Gas & Electric Co. v. Wichita Natural Gas Co. (C. C. A.) 266 F. 614, 618.

In Graves v. Corbin, 132 U. S. 571, 585, 10 S. Ct. 196, 200 (33 L. Ed. 462) it is said: "The case as made by the bill, and as it stood at the time of the petition for removal, is the test of the right to removal."

In Pollitz v. Wabash R. Co. (C. C. A. 2d Circuit) 176 F. 333, 335, the court said: "Only the bill is to be considered on this motion to remand."

It should be said, however, that in both of the above cases the question was as to whether a separable controversy was involved which might be removed.

Judge Bourquin, of the Ninth Circuit, in the case of Hall v. Great Northern R. Co. (D. C.) 197 F. 488, 490, says: "By reason of the statutes aforesaid, it is settled law that a case that could not be brought and maintained in a federal court against defendant's objections, cannot be removed and maintained therein against plaintiff's objections" — citing In re Moore, 209 U. S. 506, 28 S. Ct. 585, 706, 52 L. Ed. 904, 14 Ann. Cas. 1164.

It seems to be the rule that the question of removability is to be determined from the complaint and the petition for removal as of the time the petition is filed.

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