Finney v. Continental Baking & Milling Corporation

CourtNew York District Court
Writing for the CourtSLICK
Citation17 F.2d 107
Decision Date12 January 1927

17 F.2d 107 (1927)


District Court, D. Indiana, South Bend Division.

January 12, 1927.

Mahoney, Fansler & Douglass, of Logansport, Ind., for plaintiff.

B. F. Long, of Logansport, Ind., and Samuel B. Pettengill, of South Bend, Ind., for defendant.

SLICK, District Judge.

Plaintiff filed his complaint in the Cass circuit court of the state of Indiana, November 9, 1926, and summons was issued against defendants, returnable November 20th. On November 16th, four days prior to the return day, defendant Continental Baking & Milling Corporation filed its petition to remove the cause to the federal court, setting up the fact, which is conceded, that the Continental Baking & Milling Corporation and the Finney Baking Company are one and the same corporation; the name of the Continental Baking & Milling Corporation having been changed to that of Finney Baking Company.

Plaintiff is a citizen and resident of the state of Indiana, and the defendant is a citizen, resident corporation, organized under the laws of the state of Delaware, with its principal place of business in the state of Delaware.

Plaintiff in his complaint charges that defendant is indebted to him in the sum of $18,000, which sum is long past due and fully unpaid. Plaintiff further alleges that the defendant, through its president, is so managing and conducting its business, by dissipating its assets and accumulating indebtedness, real and pretended, that, unless a receiver is appointed, its property will be entirely lost, and prays for judgment in the sum of $18,000, and that a receiver be appointed, without notice, to take charge of all the assets of the defendant and operate said property as a going concern.

The Code of the state of Indiana permits the joining of actions at law and in equity, and abolishes all distinctions in pleading and practice between actions at law and suits in equity. Immediately upon the filing of the complaint, the state court appointed a receiver, who qualified, and who is now in charge of defendant's property. When defendant filed its petition for removal, the state court entered a finding that the bond tendered and filed by defendant is good and sufficient, but that the petition does not show a proper legal cause for the removal of the action to the District Court and the same was denied. Transcript was then filed in this court, which amounts in effect to removal.

Plaintiff moves to remand the cause of action, for the alleged reason that this court is without jurisdiction to hear and determine the same. He argues that, the plaintiff being a simple contract creditor, who has not reduced his claim to judgment, but brings suit on account, joining with it an application for the appointment of a receiver pendente lite, a federal court has no jurisdiction, and relies on the well-established rule that, if a case could not have been brought in the federal court in the first instance, it cannot be removed.

The authorities do hold that the federal...

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