Monroe v. Williamson

• Decision Date: 07 August 1897
• Citation: 81 F. 977
• Parties: MONROE et al. v. WILLIAMSON et al.
• Court: U.S. District Court — Western District of Arkansas

81 F. 977

MONROE et al. v. WILLIAMSON et al.

United States Circuit Court, W.D. Arkansas.

August 7, 1897

Hill &amp Brizzolara, for plaintiffs.

Ira D Oglesby, for defendants.

ROGERS District Judge.

Alexander Monroe and S. N. Lee, on the 14th of June, 1897, filed a complaint in equity in the circuit court of Crawford county Ark., against John D. Williamson and William B. Strang, Jr. and caused process to issue, returnable to the next November term of that court, which process was on the following day duly served on both the defendants. The object of the bill was to dissolve and settle a partnership between all the parties to the suit, and incidentally for an injunction and a receiver to take charge of a large fund in one of the banks at Ft. Smith, Ark., in the adjoining circuit, and to collect other assets of the firm, to be disposed of under the order of the court. On the 17th of July-- three days after the bill was filed-- plaintiffs filed a petition with the judge of that circuit at Paris, in Logan county, in that circuit, asking the appointment of a receiver and a restraining order. Prior to the filing of the bill in the Crawford circuit court, a bill in equity had been filed in this court, and an injunction granted, and receiver appointed, who had qualified, and taken possession of the moneys in the Ft. Smith bank. Plaintiffs' petition for receiver alleged that this, the circuit court of the United States for the Western district of Arkansas, was without jurisdiction of the cause, and alleged that plaintiffs had given notice that they would, on the 19th of July, appear specially in this court, and move to quash the service of process, and discharge the receiver; and alleged that it was important that a receiver be appointed to take charge of the moneys in the hands of the receiver appointed by this court, when he was discharged, as well as other assets which said receiver had not reduced to his possession. On the 17th of July, while the petition for a receiver was being heard at Paris, in Logan county, Ark., before the judge of that circuit at chambers, the judge received a telegram that on the bill of one of the defendants, filed in the state circuit court in the adjoining circuit, the judge of that circuit had appointed a receiver, whereupon the hearing was adjourned to July 20, 1897, at Van Buren, in Crawford county. The Crawford circuit court had been adjourned to that day. On July 19th the counsel for the defendants, in the case in the Crawford circuit court, filed the petition and bond of the defendants for the removal of that case into this court. No question is made as to the form or sufficiency of the bond, or the form or facts stated in the petition, except as stated hereafter. On the 20th of July the plaintiffs and the defendants appeared by their respective counsel, and the petition for the receiver was heard. The judge made the following order:

'Come plaintiffs by their attorneys, Hill & Brizzolara, and defendants, by their attorney, Ira D. Oglesby, and the judge hearing a continuance of the application for receiver herein doth, after hearing argument of counsel, refuse to appoint a receiver, and refuse to continue further this application, and dismisses said application without prejudice to any future application which may be made.

'7/20/1897. J. H. Evans, Judge 15 Judicial Circuit.'

On the 29th of July, 1897, the defendants' counsel caused to be filed in this court a transcript of the record of the Crawford circuit court, and two days thereafter the plaintiffs filed their motion in this court to remand the cause to the Crawford circuit court for the following reasons: (1) That the petitions for removals are insufficient, and fail to show removable grounds. (2) That the petition and bond have not been presented to the Crawford circuit court, and have not in any way been acted on by said court. That the petitions and bonds have been filed before the clerk of said court in vacation, and at the request of counsel for the defendants the clerk of that court has made a transcript of the papers in his office in the above-styled cause, and sent the same to this court. The said case and petitions and bonds have been filed with the clerk, and not acted upon by him other than to make out a transcript at request of defendants' counsel, and the next term of Crawford circuit court will convene on the third Monday in November. (3) That the case is not removable to this court, it being a case which was not originally cognizable in this court, and cannot be removed here for that reason.

In support of the motion plaintiffs filed the affidavits of Joseph M. Hill and J. H. Evans, which affidavits are in words and figures as follows, respectively, to wit:

'I, Jos. M. Hill, do upon oath state: I am one of the attorneys for the plaintiffs in this action. I was present before Judge Evans in Van Buren on the 20th of July, 1897, when we had an application for receiver pending before him. The hearing of said application had been continued from Paris, Ark., where it begun on the 17th, to Van Buren, by the judge, he informing us at Paris that he was to go to Van Buren on the 20th for the purpose of closing the June term of court there, signing the records, etc. I understood that the business of the court at Van Buren was completed, and formal matters only were to be concluded there, and the hearing there was before him as at chambers. Ë HC979 Mr. Oglesby had previously filed the petitions with the clerk, the court not being in session when they were filed. The argument was upon the application for the appointment of a receiver, and I asked a continuance of the application. Mr. Oglesby resisted it upon two grounds: First, that Judge Bryant had appointed a receiver in a case between these parties; and, secondly, that his application for removal had, eo instanti, taken jurisdiction from the Crawford circuit court. The petition for removal was not before us and no- before the judge, Mr. Oglesby having had it sent to him at Fort Smith; but he stated the substance of it. I did not understand that Mr. Oglesby asked the judge or the court to then remove the case, but argued that the filing of the petition and bond of themselves removed the case. Judge Evans indicated that, if he thought the case was removable at that time, that he would then docket it, as he was holding a day of that court, and act upon it, but, as he understood that Mr. Oglesby acquiesced in that procedure, and did not claim or insist in any way that the court should act upon it; his argument being that the filing of the petition and bond divested the court of further jurisdiction; and Judge Evans, not considering that that question would come before him till November, took no action in the matter whatever, and the petition was not there, and was not presented to the judge or to the court. This is my understanding, exactly, of the way the matter was disposed of before Judge Evans. There was no court in session at Van Buren on the 17th or 19th of July, and the case has not been docketed upon the court records of the June term, and was not entered upon the judge's docket, and merely remains with the clerk as other cases returnable to November term.'

'I am the presiding judge of the circuit court for Crawford county, Arkansas, and was such judge on the 17th and 20th days of July, 1897. On the first-named day, to wit, July 17th, 1897, at the court house in Paris, Logan county, Arkansas, at chambers, I heard the application of the plaintiffs in Monroe & Lee v. Williamson and Strang, Jr., pending in the Crawford circuit court, for the appointment of a receiver in said cause. The hearing was to begin at noon, but immediately after noon I was advised by Col. Oglesby, attorney for defendants, that he was not ready, as he had some papers to prepare. Some time between two and three o'clock of that day both Mr. Hill, for plaintiffs, and Mr. Oglesby, for defendants, appeared before me on said application, Mr. Oglesby insisting on a postponement of a hearing of the application, and Mr. Hill resisting it. During the argument I was advised that bond and petition for the removal of the cause to the federal court at Fort Smith had been filed by defendants with the clerk of the circuit court at Van Buren, Crawford county, at 3 p.m. on that day. I was also advised by Mr. Oglesby that he had just received information that Judge Bryant, at Fort Smith, at 3 p.m. on that day, had made an order appointing a receiver in the cause pending in the Sebastian circuit court for the Fort Smith district between some or all the same parties, Mr. Oglesby remarking that he supposed that ended the matter then before me. Mr. Oglesby also, before this last information, filed with me, as judge, petition and bond for removal of cause to the U.S. court at Fort Smith, Arkansas. Upon the consideration of all the matters presented to me, I concluded to grant Judge Oglesby's request for a postponement of the hearing of the application for a receiver, and announced that I would adjourn the hearing to the court house at Van Buren, Arkansas, and resume it there on the morning of July 20th, 1897, as I was compelled to be there, and hold a day of the Crawford circuit court; and thereupon I did so adjourn the hearing until the time and place named above. On July 20th, at 7:30 a.m. I convened the Crawford circuit court, pursuant to the order of adjournment of said court made on July 2nd, 1897. Judge about 8 o'clock, or a little after, while court was in session, and while I was on the bench as judge thereof, Mr. Hill and Mr. Oglesby appeared. As I was not engaged in the trial of any matter in court at the time, I announced that I was ready to proceed with the hearing of the application for receiver in the

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