Hancock v. Holbrook

• Citation: 28 L.Ed. 714,5 S.Ct. 115,112 U.S. 229
• Parties: HANCOCK v. HOLBROOK (now Mrs. Nicholson) and others. 1
• Decision Date: 17 November 1884
• Court: United States Supreme Court

112 U.S. 229

5 S.Ct. 115

28 L.Ed. 714

HANCOCK v. HOLBROOK (now Mrs. Nicholson) and others.¹

November 17, 1884.

Eppa Hunton, Jeff. Chandler, J. D. Rouse, and Wm. Grant, for appellant.

Thos. J. Semmes and Robert Mott, for appellee.

WAITE, C. J.

This suit was brought in a state court of Louisiana on the twenty-fifth of November, 1876, by Edward C. Hancock, a citizen of Louisiana, against Eliza Jane Holbrook, George W. Nicholson, R. W. Holbrook, and Chas. T. Howard, all of the city of New Orleans, as stated in the petition, to establish an alleged title of Holbrook to 20-51 parts of all the property, rights, assets, and good-will of the 'New Orleans Picayune Newspaper & Printing Establishment,' then in the possession of the defendants at New Orleans. All the defendants were served with process by the sheriff of the parish of Orleans. On the thirteenth of December, 1876, Nicholson filed in the state court a petition for the removal of the suit to the circuit court of the United States for the district of Louisiana. In this petition he stated that he was a citizen of the state of Mississippi and Hancock a citizen of the state of Louisiana. No mention was made of the citizenship of the other defendants, and no other ground of removal was given than that Hancock and Nicholson were citizens of different states. It does not appear that this petition was ever formally presented to the state court. The transcript only shows that it was filed. On the nineteenth of December, 1876, after the date of the filing of the petition for removal, the petition in the suit was amended by add- ing the name of Richard Fitzgerald, a citizen of Louisiana, as a defendant, and a summons was thereupon issued to bring this new defendant into court.

On the eleventh of December, 1877, nearly a year after the petition for removal was filed, the clerk of the state court made a transcript of the record and proceedings in that court, and annexed his certificate of its correctness. On the same day the attorney of Hancock indorsed on the transcript the following: 'I consent, on behalf of plaintiff, that this shall be considered a correct transcript of the record of the suit of E. C. Hancock v. Mrs. E. J. Holbrook, No. 23,653, Third district court, parish of Orleans, the same to be filed in the United States circuit court, in accordance with the order to transfer.' The transcript, thus certified and indorsed, was filed in the circuit court of the United States on the thirteenth of December, 1877. No motion was ever made to remand the cause, and on the tenth of January, 1878, proceedings were begun in the cicuit court, at the instance of the attorney for the plaintiff. Answers were afterwards filed by the defendants and testimony taken, upon which the parties went to a hearing, which resulted in a decree, on the thirteenth of March, 1881, dismissing the bill. From this decree Hancock appealed.

It was decided at the last term, in Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, S. C. 4 SUP. CT. REP. 510, that when a suit which has been removed from a state court is brought here by appeal or writ of error, and it does not appear on the face of the record that the...