Richmond & D.R. Co. v. Findley

• Decision Date: 14 June 1887
• Citation: 32 F. 641
• Parties: RICHMOND & D.R. CO. v. FINDLEY and others. [1]
• Court: U.S. District Court — Northern District of Georgia

32 F. 641

RICHMOND & D.R. CO. v. FINDLEY and others. ^[1]

United States Circuit Court, N.D. Georgia.

June 14, 1887

Pope Barrow, Hopkins & Glenn, and S. C. Dunlap, for complainants.

John B Estes, Claude Estes, and W. F. Findley, for respondents.

NEWMAN J.

During the hearing of this case counsel for defendants suggested to the court that the case was improperly removed to this court and moved to remand it to the state court. The motion was only briefly argued at that time, without production of authority on either side. The court reserved its decision on the question, and heard the case to a conclusion, reserving its decision on the entire case also. Since the hearing counsel on both sides have furnished some authorities on the question of removal, and I have examined the question and authorities with considerable care myself. This case was removed under the second section of the act of March 3, 1875. The supreme court of the United States in the case of Gibson v. Bruce, 108 U.S. 561, 2 S.Ct. 873, decided that a case could not be removed from a state court under the act of 1875, unless the requisite citizenship of the parties existed both when the suit was begun, and when the petition for removal was filed. In the case of Cable v Ellis, 110 U.S. 389, 4 S.Ct. 85, a suit in equity involving titles to real estate, and priority of lien, which had been long pending in the state court when Cable became interested in the property by grant from one of the parties interested in the suit, and intervened in the case by leave of the state court at a time when the right of removal from the state to the federal court had expired as to the original parties, it was held that he was subject to the disabilities of the party from whom he took title, and the time for removal had expired, and that his right of removal was barred by that fact. In the case of Railroad Co. v. Shirley, 111 U.S. 358, 4 S.Ct. 472, it was held that the substituted party comes into a suit subject to all the disabilities of him whose place he takes, so far as concerns the right of removal of the cause; and the cases of Gibson v. Bruce, and Cable v. Ellis, supra, cited with approval. The doctrine of these cases is admitted by counsel for complainant here, but they say this is a new and distinct suit, and that the fact that the heirs at law of Elizabeth Findley are made parties to their bill, and that they ask special relief against them as such, makes it a different and distinct case from the ejectment suit. All the rights that the Richmond & Danville Company had or could set up in this controversy, either at law or in equity, are such rights as they acquired from the Atlanta & Charlotte Company. Before the agreement between these two companies, the administrator of the estate of Elizabeth Findley had commenced suit to recover this property. The Richmond & Danville, of course, took lis pendens, and any estoppel or prescription it might claim against either the estate of Elizabeth Findley, or her heirs at law, only ran to the time of the commencement of the ejectment suit. The Richmond & Danville Company sets up no separate or distinct right or equity as to itself. Nothing whatever has transpired between it and the estate or heirs at law of Elizabeth Findley; on the contrary, as I have stated, it took with a suit pending to recover this land. What then were the rights of the Atlanta & Charlotte Company? It could have set up everything as a defense that is contained in the bill filed by the Richmond & Danville Company, and it could have set it up, I think, by an equitable plea to the action of ejectment, or it might have filed its bill on the equitable side of the court, if it preferred. Elder v. Allison, 45 Ga. 14, 17.

It is stated in the bill and admitted in the answer that the estate of Elizabeth Findley owed no debts. That being true, the suit of the administrator was solely for the purpose of...