Gregory v. Hartley
| Decision Date | 16 March 1885 |
| Citation | 113 U.S. 742,5 S.Ct. 743,28 L.Ed. 1150 |
| Parties | GREGORY and others v. HARTLEY and another |
| Court | U.S. Supreme Court |
Chas. O. Whedon, for plaintiffs in error.
Walter J. Lamb and E. E. Brown, for defendants in error.
This is a writ of error to reverse a judgment of the supreme court of Nebraska, on the single ground that the supreme court decided that the district court of Lancaster county had jurisdiction to proceed with the suit after a petition for the re- moval thereof to the circuit court of the United States had been made and filed in the district court. The transcript, which has been returned with the writ, is evidently very imperfect, and it purports to contain only a part of the record below. It is not authenticated by the clerk as a full transcript, and it shows on its face that much which is important to a correct understanding of the case has been omitted. From what has been returned, however, it sufficiently appears that the suit was originally brought in the district court of Lancaster county, by Milo F. Kellogg against Luke Lavender, James E. Phillpot, John S. Gregory, E. Mary Gregory, Thomas J. Cantlon, R. F. Parshall, and perhaps some others, to enforce the specific performance of a contract in writing, entered into on the thirtieth of July, 1872, between the plaintiff Kellogg and the defendant Lavender for the sale by Lavender to Kellogg of certain lots in Lincoln, Nebraska. The price to be paid was $2,500. Of this amount $500 was paid in hand, and for the remaining $2,000 Kellogg executed two notes of $1,000 each, payable to the order of Lavender: one on the first day of May, 1873, and the other on the first day of May, 1874, with interest at the rate of 12 per cent. per annum. At what time the suit was begun nowhere appea s, but an amended petition was filed on the twenty-second of November, 1879, making Joseph W. Hartley, Reuben R. Tingley, and many others, parties. To this petition Hartley filed an answer and cross-petition on the second of December, 1879, Tingley an answer on the first of December, 1879, and Parshall an answer and cross-petition at some time before May 17, 1880. The answer and cross-petition of Hartley are found in the record, and from them it appears that he claimed and sought to enforce a lien on the property as security for the payment of money he advanced Kellogg to aid in paying the note due to Lavender in May, 1873. The answer of Tingley and the answer and cross-petition of Parshall are not copied into the transcript. On the seventeenth of May, 1880, the two Gregorys, Lavender, Cantlon, and Phillpot filed demurrers to the answers and cross-petitions of Hartley and Parshall, and to the answer of Tingley, on the ground that they did not state facts sufficient to constitute a cause of action or a defense.
These demurrers were heard and overruled by the court on the seventeenth of August, 1880, and 30 days given the demurring defendants to answer.
At the time of the filing of the amended petition the legal title to the property was in E. Mary Gregory, the wife of J. S. Gregory, Lavender having conveyed it to Phillpot and Cantlon after he made his contract with Kellogg, and they having afterwards sold and conveyed it to Mrs. Gregory. On the twenty-eighth of November, 1879, Mrs. Gregory settled all matters in dispute with Kellogg, and he assigned to her his contract with Lavender. After this settlement, on the twenty-second of September, 1880, Mrs. Gregory filed her answer to the amended petition, in which she set up her title to the property and her adjustment of the controversy with Kellogg. On the twenty-seventh of September, 1880, Lavender, Phillpot, and Cantlon filed their answer to the cross-petition of Hartley. On the fifth of November, 1880, leave was given Parshall and Tingley to file amended answers in 40 days, and on the thirteenth of December, 1880, Parshall did file his answer and cross-petition, claiming to be the owner of Kellogg's note to Lavender falling due in 1874, and asking to enforce a lien on the property for its payment. At the same time Tingley filed his answer and cross-petition, in which he claimed an interest in the note due in 1874, and prayed affirmative relief in his own behalf. On the third of March, 1881, Lavender, Phillpot, Cantlon, and Mrs. Gregory, with leave of the court, filed a reply to the answer and cross-petition of Parshall. On the twenty-third of March, 1882, leave was granted Tingley to amend his pleadings, and to Mrs. Gregory to file an amended answer in 30 days. Mrs. Gregory did file her amended answer to the cross-petition of Hartley on the seventeenth of April, 1882, and, on the...
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