Flash v. Dillon

• Decision Date: 02 October 1884
• Citation: 22 F. 1
• Court: U.S. District Court — Eastern District of Texas
• Parties: FLASH and others v. DILLON.

22 F. 1

FLASH and others v. DILLON.

United States Circuit Court, E.D. Texas.

October 2, 1884

Culberson & Culberson, for the motion

Todd &amp Hudgins and Geo. T. Todd, contra.

SABIN J.

In this case it is urged that the same has been improperly removed to this court, the same not being a 'suit' within the terms of the act, and that it is virtually an appendage to the suit of Flash, Lewis & Co. v. R. Bruhn, No 1,654, wherein judgment was rendered September 26, 1877 in the district court of Bowie county, Texas. In the state courts this class of proceedings is virtually recognized as a 'suit,' and so generally understood and considered by the public and the profession; but the question seems to be whether, in point of fact, it is such a 'suit' as can be removed to this court, being a proceeding authorized by statute for the trial of the right of property. At first I was very much inclined to think that it was, and but for the authorities adduced should have so held. Upon the examination of authorities, however, I find that it seems to be settled that it is not such a suit as can be removed into this court unless the original suit has remained undetermined, and was likewise with this removed to this court.

The case of Bank v. Turnbull, 16 Wall. 190, seems to control this case. The practice in Virginia, it is true, is somewhat different from that in our state, as there the claimant intervenes in the suit and gives two different kinds of bonds, and here he files an affidavit and gives but one kind of bond; but in all other respects it seems to be very similar to ours, and the reasoning of the court in that case is applicable to our own, and it seems to me that I ought to be bound by that decision and decide this case in accordance therewith. The court, in that case, say:

'Conceding it to be a suit and not essentially a motion, we think it was merely auxiliary to the original action,-- a graft upon it, and not an independent and separate litigation. A judgment had been recovered in the original suit, final process was levied upon the property to satisfy it, the property was claimed by Turnbull & Co., and this proceeding, authorized by the laws of Virginia, resorted to settle the question whether the property ought to be so applied. The contest could not have arisen but for the judgment and execution, and the satisfaction of the former would have at once extinguished the controversy between the parties. The proceeding was necessarily instituted in the court where the judgment was rendered and whence the

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