H. C. Thacher & Co. v. R. P. Mcwilliams & Co.

• Decision Date: 31 July 1872
• Citation: 47 Ga. 306
• Parties: H. C. THACHER & COMPANY, plaintiffs in error. v. R. P. McWILLIAMS & COMPANY, defendants in error.
• Court: Georgia Supreme Court

47 Ga. 306

H. C. THACHER & COMPANY, plaintiffs in error. v. R. P. McWILLIAMS & COMPANY, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Removal of case to the United States Court Before Judge Green.

Spalding Superior Court. February Term, 1872.

*R. P. McWilliams & Company sued out an attachment against H. C. Thacher & Company upon the following affidavit:

"GEORGIA—Spalding county:

"In person appeared before me, Edwin W. Hammond, a Notary Public in and for said county, Robert P. McWilliams, one of the firm of R. P. McWilliams and Samuel McWilliams, composing the firm of R. P. McWilliams & Company, who, being sworn, saith that Edmond Sindall and Charles A. Sindall, composing the firm of Charles A. Sindall & Company, of said county, and H. C. Thacher & Company, in the city of Boston, and State of Massachusetts, (but whose christian names and the entire names of partners are unknown to deponent,) are indebted to said R. P. McWilliams & Company, jointly and severally, in the sum of $13,608 39, amount paid out by the said R. P. McWilliams & Company for two hundred bales of cotton, purchased for the said Charles A. Sindall & Company and H. C. Thacher & Company, on their joint account, which cotton was shipped to the said H. C. Thacher & Company by the said Charles A. Sindall & Company, without paying the said R. P. McWilliams & Company the said sum of $13,608 39 so paid out as aforesaid, and that said Charles A. Sindall & Company were wholly insolvent, and the said H. C. Thacher & Company reside out of the State of Georgia, and said Charles A. Sindall absconds.

(Signed) "R. P. McWillliams.

"Sworn to and subscribed before me, this 13th day of February, 1871.

(Signed) "Ewdin W. Hammond, Notary Public."

Bond was given, and an attachment issued against Sindall & Company and Thacher & Company, which was levied upon one hundred and twenty-nine bales of cotton bagging. At the August term, 1871, of the Superior Court of Spalding county, the declaration in attachment was filed. At the same term of said Court, Thacher & Company filed a petition, containing *substantially the following allegations: That Henry C. Thacher resided at the time said suit was commenced, and now resides, in the State of Massachusetts, and Thomas Thacher, the other partner, in the State of New York; that the sum claimed in said suit exceeds $500, exclusive of costs; that Henry C. Thacher, of said firm, has made and filed in the Court, on behalf of said firm, his affidavit, according to the Act of Congress, approved March 2d, 1867, and the Act of which it is amendatory, relative to the removal of causes from the state Courts to the Circuit Court of the United States, which affidavit, to-gether with the good and sufficient security as required, are now in Court, tendered and offered, and for the cause set forth in said affidavit, to-wit: "That deponent has reason to, and does, believe that from local influence, the said h. C. Thacher & Company will not be able to obtain justice in the said Superior Court;" petitioners ask that said attachment suit proceed no further in said Superior Court, and that it may be removed to the District Court of the United States for the Northern District of Georgia, said District Court having the same jurisdiction of like causes as said attachment suit as the Circuit Courts of the United States.

The Court directed that the cause be transferred in accordance with the prayer of the petition.

At the September term, 1871, of the District Court of the United States, for the Northern District of Georgia, the following order was passed:

"R. p. McWilliams & company v. H. C. thacher & company and C. A. SINDALL & COMPANY: Attachment in Spalding Superior Court, and which was transferred to the District Court for the Northern District of Georgia.

"The above cause having been transferred to this Court by the Judge of the Superior Court o' Spalding county, and State of Georgia, and plaintiffs having made and filed in this Court their motion to have said cause remanded to Spalding Superior Court for causes in said motion set forth, after argument had, ordered by the Court, that the above cause be remanded *to Spalding Superior Court, upon the ground that there cannot be a final termination of said cause in this Court without the presence of the other defendant as party to said cause, to-wit: C. A. Sindall; and, further ordered, that the clerk of this Court make out a certified copy of said motion to remand, and this order, and that he forward the same to the Clerk of the Superior Court of. Spalding county.

(Signed) "Doval & Nunnally,

"J. D. Stewart,

"Plaintiffs' Attorneys.

(Signed) "John Erskine, Judge.

"October l0th, 1871."

At the February term, 1872, of Spalding Superior Court, plaintiffs moved to reinstate said cause upon the common law docket. h. C. Thacher & Company objected to said motion upon the following grounds, to-wit:

1st. Because said cause has been duly transferred by the judgment of said Court at the August term, 1871, to the said District Court of the United States for the Northern District of Georgia, which judgment and order had not been excepted to, and stood unreversed.

2d. Because said Superior Court of Spalding county had...