LOOMIS
V.
NEW YORK
&
CLEVELAND GAS COAL
00.
353.
LOOMIS et ale
'V.
NlJ:W YORK & CLEVELAND GAS COAL CO. January 4,1888.)
(Circuit (Jourt, No D. N(JUJ York.
REMOVAL OF CAUSES-CITIZENSHIP-ACT OF MARCH
3,1887. A 'suit brought in the supreme court of New York by a citizen of that state agaInst a Pennsylvania corIJoration, was remo.ved, on the defendant's motion, to the circuit court of the United States, under the removal act of March 3, 1887. Held, that the removal was authorized by the statute, the defendant not being a residen.t of New York, and a motion to remand to the state court must be denied; following Fales v. Railway (Jo., 32 Fed. Rep. 673.
At Law. Motion to remand cause to state court. Ansley Wilcox, for plaintiffs. George J. Sicard, for defendant. COXE, J. The plaintiffs are citizens of New York, residing at Buffalo, in this district. The defendant is a corporation organized under the laws of Pennsylvania. The action was commenced in the supreme court of this state in April of the present year. The defendant appeared and removed the cause to this court. The plaintiffs now move to remand, upon the ground that under the provisions of the act of Maroh 3, 1887, thi.s court has no jurisdiction, the defendant being a citizen of Pennsylvania. It will be seen that the motion involves the precifle question passed upon in the following causes: County of Yuba V. Mining .Co., 32 Fed. Rep. 183;Falea V. Railway Co., Id, 673; Telegraph Co. v. Brown, Id. 337. In the California case jurisdiction Wl1S denied by Judge SAWYER, the decision being concurred in by Mr. Justice FIELD and Judge SABIN. In the Iowa and Illinois cases jurifldiction was sustained by Judges SHIRAS. and GRESHAM, respectively, and in the Missouri case the views expressed by Judge BREWER make it quite clear that he is in accord w.ith the latter construction. The adverse views as to the true interpretation,. of the. indeterminate language of the act of 1887 are fully and ably sented by these decisions. It is thought that no argument which isnot a recapitulation of what has been already said can De contributed to the controversy on either side. Suffice it is to say that, after a careful examination of the statute, in the light of these decisions, I am to adopt the view that the court has jurisdiction, and that the cause should be retained. The statute should, if possible, be so construed as to give vitality to every part, and this has, it is thought, been successfully accomplished by Judge SHIRAS in the Falea O:zse, supra. To the able argument there presented I have nothing to add. I am authorized to say that the same opinion is entertained by Judges WALLACE and LACOMBE. The motion to remand must be denied. v.33F.no.6-23
354' REYNOLDS
l'EDERA(; REPOB.TEH.
et at
'V. IRON SILVER 'MIN ·
eo.
:L
(Cirouit OO'Url, D. Oolorado. January 12, 1888.)
and the law 'side of the case has Once been adjudicated upon by the supreme court. and has been a second time taken to said court, and Is. still with reasonable certainty that'- an adjudication will soon be had. the circUIt conrt will not dissolve the injunction, or sustain a motion to file a supplemental answer. '
In an a'ction where a temporary Injunction has been granted by a trialjudge.
PENDING IN SUPREME COURT.
In Equity. On motion for leave to file supplemental answer, and to dissolve injunction. Action was brought by the Iron Silver Mining Company, plaintiff, against Joseph Reynolds and J. D. Morrisey, defendants, in the district court of the United States, district of Colorado, claiming title and right of possession to certain mining property. Pending an appeal of the case to the 'supreme court, 8 temporary injunction was granted to restrain the working of the mine, pending the legal action. The action is now broughtin the circuit court, by 'complainant, on an independent application for leave to file a supplemental answer and dissolve the injunction. L. 8. Di:xon and F. W. Owers, for complainant. R. S. Morrison and S. ThO'TlUl8, for defendant.
a.
,BREWER; J. This i&8 case in which an injunction was issued in aid' of One of these mining actions, and to restrain the working of the mine pending the legal. action. The litigation between the, parties has been protracted and extensive,and the law action has been once to the supremecourt of the United States, (6 Sup. Ct. Rep. 601,) reversed, the secOnd time taken to the supreme court, has been submitted, 'and is now awaiting decision by that court, and doubtless, in the ordinary course of bUSiness, will be decided in from 30 to 60 days. The question is whether this court should now interfere, at this stage of the case,' to ;di8Solv6' the temporary injunction whichhtis been granted. It is undoubted. that the trial court has power to continue injunctions after decisidl'linthe trial court,adverseto the rights of the complainant in the equitysu.it; pending appeal and ultimate determination in the appellate court. Rule 98 of the supreme court expressly provides that, where an injUnctiOll is granted below, the trial court.may determipewhether the appeal shall 'Work :8. sw!)(rrsedea8 or not, and if it shaH work'a Bttperaedeas, upon what terms the injunction shall stand dissolved,.· or shall be stayed i and I WllS' advlsMby one oithe justices of the supreme court that the intent of the supreme court in that rule was to relieve itself from the duty of inquiring, when cases involving injunctive relief were decided in the trial court, as to whether that relief should be continued pending appellate proceedings. And, independent of that rule, it was a familiar exercise of the powers{)f a court of chancery in the first instance,-the trial court to :L
Reversed. See 8 Sup. Ct. Rep. 598.