English v. Supreme Conclave, Improved Order of Heptasophs
| Decision Date | 06 September 1916 |
| Citation | 235 F. 630 |
| Parties | ENGLISH v. SUPREME CONCLAVE, IMPROVED ORDER OF HEPTASOPHS, et al. |
| Court | U.S. District Court — District of New Jersey |
McCarter & English, of Newark, N.J., for complainant.
Olin Bryan, of Philadelphia, Pa., and W. Holt Apgar, of Trenton N.J., for defendants.
Nicholas C. J. English, a citizen and resident of New Jersey, on December 31, 1915, filed his bill in the Court of Chancery of that state against the Supreme Conclave, Improved Order of Heptasophs, a corporation incorporated and organized under the laws of the state of Maryland, hereafter called the Supreme Conclave, and the Garfield Conclave, No. 241 Improved Order of Heptasophs, unincorporated, located at Elizabeth, N.J., hereafter called the local conclave. The bill seeks to permanently enjoin the defendant from doing certain things hereinafter particularly mentioned. On the same day that court made an order requiring the defendant to show cause on January 11, 1916, why an injunction should not issue as prayed in the bill, with an ad interim stay covering the matters sought to be permanently enjoined. On the latter day the Supreme Conclave had the said cause removed into this court. No subp. ad. resp. has been issued in said cause.
The plaintiff moves to remand the cause to the state court upon the following grounds:
As to the first ground: If the cause should be remanded for this reason, nothing would prevent another removal as soon as subpoena should be issued. Section 28 of the Judicial Code, 36 Stat. 1087, provides (so far as pertinent):
'Any suit * * * which may hereafter be brought, in any state court, may be removed into the District Court of the United States.'
The plaintiff contends that a suit is not brought in the state Chancery Court until subpoena issues. I think the plaintiff is estopped from raising this point. It would seem to be consonant with the true principles governing the administration of justice that one who brings another into a court of equity upon the allegation that a wrong, irremediable at law, has been done him, and succeeds in placing the alleged wrongdoer under judicial restraint, should be prevented from saying that no 'suit' had been brought against him.
But, passing the estoppel: The plaintiff relies upon Hermann v. Mexican Petroleum Corp. (N.J. Ch.) 96 A. 492. In that case Vice Chancellor Backes held that:
'Before the issuing of process, a cause is not 'pending' in chancery, so as to make it the subject of removal into the law courts, under the Transfer of Causes Act (P.L. 1912, p. 417).'
On the hearing of the rule to show cause in that case the preliminary injunction was denied, and the bill dismissed. With the denial of such injunction the ad interim restraint ceased, and there was nothing calling for an answer from the defendant, as no subpoena had been issued. In such a situation, confronted with the alternative of transferring the cause to the law court or dismissing the bill, the learned Vice Chancellor held that, at that time, there was no suit 'pending,' as contemplated by the state Transfer of Causes Act (), and dismissed the bill.
In the instant case the removal proceedings brought into the court, not only the filed bill, but the rule and ad interim restraint referred to. As the cause stood in the state court, and stands here, the defendants were and are required to make answer to the rule directed against them, and they continue under the restraint imposed upon them in such proceedings. Surely in every sense, except a technical one, such proceeding was and is a suit pending.
The words of a statute regulative of a constitutional right are not to be given a narrower meaning than they bear, or the context demands. The particular words 'suit brought' should be so construed as to give them the full effect intended by the federal statute; i.e., the right of a defendant possessing the requisite qualification to remove into the federal court a proceeding instituted against him in a state court. Whatever the form of proceeding to bring a defendant into court, a suit is brought when such defendant is subjected to judicial orders.
While the filing of a bill in the state Court of Chancery may not be the commencement of a suit, so as to bring it within the meaning of 'PENDING' IN A STATE STATUTE, AUTHORIZIng the transfer of a cause from one state court to another, the filing of an injunction bill in a state court, followed by an ad interim stay, pending the hearing of a rule to show cause why a preliminary injunction should not issue in said cause, is a suit within the meaning of the Federal Statute in question.
As to the second ground: This calls for determining whether, as between the Supreme Conclave, the defendant removing the suit, and the plaintiff, in the language of said section 28, there is 'a controversy which is wholly between citizens of different states, and which can be fully determined as between them. ' The case as made by the bill, summarized, is as follows: Plaintiff is a resident of Elizabeth, N.J., and a member of the defendant, the local conclave, located at said Elizabeth, which is one of a number of local conclaves affiliated with the Supreme Conclave, the other defendant. The latter is a corporation of Maryland and a fraternal benefit association engaged in a species of life insurance. The contract of insurance between the member and the organization is evidenced by a benefit certificate and the by-laws. The local conclave is the medium through which plaintiff obtained membership in the Supreme Conclave, and in addition it provides for sick benefits for its members under the terms of its by-laws. Plaintiff holds a benefit certificate of the Supreme Conclave which reads as follows:
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