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moral depends on the nature of the controversy, in respei to the necessary parties to it, the nature of the controvere

is not dependent on the shape which the plaintiff gives 1

the petition for the removal avers the existence of such

question, which can be determined only in this court, and cannot be finally determined here on this motion, but only on a regular trial hereafter; that, for the purposes of a remoral, nothing can be permitted to contravene the allegations of the petition in the particulars in which those allegations deny the allegations of the complaint as to the interest of George S. Mallory, or in the particulars in which a case within the removal statutes is affirmatively stated in the petition; and that, as the petition states that the suit is brought for the purpose of restraining or enjoining M. H. Mallory, that is sufficient under said section 639, although the complaint asks an injunction against G. S. Mallory also. The principal. contention on the part of the defendant is that, in this case, the question whether the con

assigning the reasons for its action, the court (Daly, J.) held that it was its duty to examine the right of removal; that, as the right of removal depended on the nature of the controversy, such right must be determined by an inspection of the complaint, as the only pleading then before the court; that the petition for removal was not a pleading, and could not vary the cause of action stated in the complaint; that the defendant could not use his petition as a pleading to raise an issue with the plaintiff on the allegations of the complaint, and show a controversy entitling him to remove the cause; that the denial in the petition as to George S. Mallory did not show the controversy to be one wholly between the petitioner and the plaintiff; that if the complaint states a cause of action which can be determined only when all the parties to the action are before the court, a denial by one of the defendants of the facts set forth in the complaint does not sever the controversy as to him, nor show that the cause may proceed as against himself without the presence of the other defendant; that an injunction is not the sole object of the action as respects M. H. Mallory, as required by subdivision 2 of section 639 of the Revised Statutes of the United States; that, under that subdivision, there cannot be a final determination of the controversy, so far as concerns him, without the presence of G. S. Mallory as a defendant, under the allegations in the complaint; and that under section 2 of the act of March 3, 1875, (18 St. at Large, 470,) there is not a controversy which is wholly between the plaintiff and M. H. Mallory, and which can be fully determined as between them, for the reason that, on the complaint, the plaintiff hás no controversy with M. H. Mallory separate from G. S. Mallory.

There has been filed in this court, on the part of one or both of the defendants, a copy, certified by the clerk of the state court, of the record of that court. The plaintiff now moves in this court to remand the cause to the state court. The motion is opposed by counsel for M. H. Mallory. It is contended by him that the question of the existence of the facts on which the right of removal depends is an issuable

troversy between the plaintiff and M. H. Mallory can be determined fully and finally as between them, without the presence of G. S. Mallory, can be decided only on the fina trial in this court on all the evidence to be taken; tha as, on the allegations of the petition, the controversy may be one which, so far as concerns M. H. Mallory, can be deter mined without the presence of G. S. Mallory, the case mus be retained by this court until it shall finally decide tha matter; that this court cannot grant this motion unless i can certainly see now that G. S. Mallory has such an interes that it is clear the controversy, as between the plaintiff an

M. H. Mallory, cannot be determined without the presenc of the other defendant; and that, in respect to the inconsis eney between the allegations of the complaint and those the petition, the latter must control, or else the case ca never reach that stage where the matter can be definitel determined by this court.

Succinctly stated, the view urged is, that where the re

the controversy when it is developed by the proofs ; that whe

question, which can be determined only in this court, and cannot be finally determined here on this motion, but only on a regular trial hereafter; that, for the purposes of a removal, nothing can be permitted to contravene the allegations of the petition in the particulars in which those allegations deny the allegations of the complaint as to the interest of George S. Mallory, or in the particulars in which a case within the removal statutes is affirmatively stated in the petition; and that, as the petition states that the suit is brought for the purpose of restraining or enjoining M. H. Mallory, that is sufficient under said section 639, although the complaint asks an injunction against G. S. Mallory also. The principal. contention on the part of the defendant is that, in this case, the question whether the controversy between the plaintiff and M. H. Mallory can be determined fully and finally as between them, without the presence of G. S. Mallory, can be decided only on the final trial in this court on all the evidence to be taken; that as, on the allegations of the petition, the controversy may be one which, so far as concerns M. H. Mallory, can be determined without the presence of G. S. Mallory, the case must be retained by this court until it shall finally decide that matter; that this court cannot grant this motion unless it can certainly see now that G. S. Mallory has such an interest that it is clear the controversy, as between the plaintiff and M. H. Mallory, cannot be determined without the presence of the other defendant; and that, in respect to the inconsistency between the allegations of the complaint and those of the petition, the latter must control, or else the case can never reach that stage where the matter can be definitely determined by this court.

Succinctly stated, the view urged is, that where the removal depends on the nature of the controversy, in respect to the necessary parties to it, the nature of the controversy is not dependent on the shape which the plaintiff gives to the controversy when it is developed by the proofs; that when the petition for the removal avers the existence of such a

error taken under section 5 of the act of 1875, affirmed i judgment of remand, on the ground that, on the pleadinge

controversy as would, if the allegation were true, authorize a removal, and the petition admits nothing stated in the complaint, and takes notice of nothing in it except to controvert it, the state court must cease from its jurisdiction; and that, where there is a conflict between the complaint and the petition, the petition alone must be regarded. In support of these views it is suggested, that, when the case is fully developed by the proofs, it may turn out that there is in it a controversy between the plaintiff and M. H. Mallory to which G. S. Mallory is not and never was a proper party; that such a state of facts will show that M. H. Mallory, at the time he presented his petition for removal, had a right to remove the suit; and that, if not now allowed to remove it, his formal proceedings being regular, it will then appear that he has been deprived of a right.

In Dennistoun v. Draper, 5 Blatchf. 336, it was held by this court that where the defendant had taken proceedings, under section 3 of the act of March 2, 1833, (4 St. at Large, 633,) to remove into this court a suit brought in a state court, the removal was imperative, if the proceedings were in conformity with the act; that the question whether the defendant had in fact a right to remove the suit could not be raised by a motion to this court, before the trial, to remand the cause to the state court; and that any question as to the jurisdiction of this court in the premises, based on the point of an alleged absence of right in the defendant to remove the suit, could be raised at the trial.

That was an action of replevin brought in the state court to recover the possession of cotton. The defendant removed the case, under the act of 1833, by certiorari, claiming that he was in possession of the cotton as an officer, under the revenue laws of the United States. The plaintiff moved to remand the cause on affidavits alleging that the defendant was simply a tort-feasor. The motion was denied, on the view that it was not proper, if it was competent, for this court to determine, upon motion, the disputed jurisdictional facts involving the right or legality of the removal, and that

the proper place to hear and determine them was on the trial. The same view was held by Mr. Justice Nelson in Fisk v. Union Pacific R. Co. 8 Blatchf. 243.

Those cases were prior to the enactment of section 5 of the act of March 3, 1875, (18 St. at Large, 472,) which provides that if, in any suit removed, it shall appear to the satisfaction of the circuit court, at any time after such suit has been removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the circuit court, the circuit court shal proceed no further therein, but shall dismiss the suit or re mand it to the court from which it was removed, as justic may require. Under this provision there is no doubt of th power of this court to remand a cause at any time before formal trial of the plenary issues in it, whenever it appear that the court has no jurisdiction of the suit. In fact, th statute is imperative that, whenever such want of jurisdictio appears, the court shall dismiss or remand the suit. Bu

the provisions do not require the court to remand the su unless it appears that the suit does not involve a controvers properly within its jurisdiction. If the suit appears on th removal papers and the prior record, taken together, to be suit properly removable, it is not to be remanded if the

que tion arises solely on those papers, as it does in this case. Th view does not affect cases like Galvin v. Boutwell, 9 Blatek 470, and Heath v. Austin, 12 Blatchf. 420, where, even befo the act of 1875, the question of citizenship was tried on at davits in this court on a motion to remand. The same this was done after the act of 1875 in Sawyer v. Switzerlai Marine Ins. Co. 14 Blatchf, 451.

It is the practice of the conrts of the United States, und the act of 1875, to try the question of jurisdiction on a moti to remand, and before the plenary trial. In Gold Waski Co. v. Keyes, 96 U. S. 199, the circuit court did this a remanded the cause, and the supreme court, on a writ

the proper place to hear and determine them was on the trial. The same view was held by Mr. Justice Nelson in Fisk v. Union Pacific R. Co. 8 Blatchf. 243.

Those cases were prior to the enactment of section 5 of the act of March 3, 1875, (18 St. at Large, 472,) which provides that if, in any suit removed, it shall appear to the satisfaction of the circuit court, at any time after such suit has been removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the circuit court, the circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require. Under this provision there is no doubt of the power of this court to remand a cause at any time before a formal trial of the plenary issues in it, whenever it appears that the court has no jurisdiction of the suit. In fact, the statute is imperative that, whenever such want of jurisdiction appears, the court shall dismiss or remand the suit. But the provisions do not require the court to remand the suit unless it appears that the suit does not involve a controversy properly within its jurisdiction. If the suit appears on the removal papers and the prior record, taken together, to be a suit properly removable, it is not to be remanded if the question arises solely on those papers, as it does in this case. This view does not affect cases like Galvin v. Boutwell, 9 Blatchf. 470, and Heath v. Austin, 12 Blatchf. 420, where, even before the act of 1875, the question of citizenship was tried on affidavits in this court on a motion to remand. The same thing was done after the act of 1875 in Sawyer v. Switzerland Marine Ins. Co. 14 Blatchf. 451.

It is the practice of the courts of the United States, under the act of 1875, to try the question of jurisdiction on a motion to remand, and before the plenary trial. In Gold Washing Co. v. Keyes, 96 U. S. 199, the circuit court did this and remanded the cause, and the supreme court, on a writ of error taken under section 5 of the act of 1875, affirmed the judgment of remand, on the ground that, on the pleadings in

be declared and decreed that certain promissory notes upe

spondent, by said Schoenfeld and Newman, were fraudule and void as against the creditors of said firm, upon the col plainant as their assignee, and upon Simon Cohen, one the members thereof; also, that it be decli red and decre

SHAINWALD, Assignee, etc., v. LEWIS.

(District Court, D. Ca'i 'ornia. November 11, 1880.!

the state court and the petition for removal, taken together, the jurisdiction of the circuit court did not appear. The same course was taken in Bible Society v. Grove, 101 U. S. 610, and in Jif kins v. Sweetzer, 1 Morrison's Transcript, 109. The question of jurisdiction was not left to be tried at the formal trial of issues raised by the pleadings. The question to be determined on this motion is whether the record before this court shows jurisdiction or a want of jurisdiction.

In Gold Washing Co. v. Keyes, above cited, it is said: "For the purposes of the transfer of a cause, the petition of removal, which the statute requires, performs the office of pleading. Upon its statements, in connection with the other parts of the record, the court must act in declaring the law upon the question it presents." Again : "The record in the state court, which includes the petition for removal, should be in such a condition when the removal takes place as to show jurisdiction in the court to which it goes. If it is not, and the omission is not afterwards supplied, the suit must be remanded.” Certainly the petition in this case shows a remarkable case under the act of 1875, because it avers that the allegations of the complaint respecting G. S. Mallory are untrue, and that he has not and never has had any interest in the subjectmatter of the suit. Even taking into view the complaint with the petition, it does not appear that this court has not jurisdiction of the suit. For the purposes of a removal, the allegations of the removing party in the petition must, at this stage of the case, prevail, and the suit must, for the present, be retained in this court.

1. FRAUD CONSPIRACY-COLLUSIVE JUDGMENT-FICTITIOUS INDEBTED NESS--FABRICATED ANTEDATED NOTES.

Where members of an insolvent firm, with intent to defraud fir creditors, conspired with a person to whom the firm was indebted only a small amount to have an attachment levied on the firm pro erty, and a judgment to be taken upon fictitious and ante-dated fin notes fabricated for the purpose, and to transfer to him all the fir property then in transitu, and for which the firm held bills of ladin and, in pursuance of such conspiracy, judgment was recovered, t firm property sold on execution, and bid in by the plaintiff in the co lusive suit, and the remaining property of the firm secretly trat ferred to him, held, that he was liable to the assignees in ban ruptcy, as representative of the firm creditors, for the value of all the firm property so fraudulently obtained by him, and will be d creed a trustee of such property, and of its proceeds, for the benefit the firm creditors represented by the assignee.

In Equity. James L. Crittenden, for plaintiff. Henry E. Highton, for respondent. Hoffman, D. J. The complainant seeks by bis bill i equity to have a certain judgment, execution, sheriff's sal and other proceedings in a suit at law in the nineteenth di trict court of this state, entitled “Harris Lewis v. Louis 1 Shoenfell, Isaac Newman, and Simon Cohen," declared to be fraud upon the creditors of the firm of Schoenfeld, Cohen Co., and upon the complainant, as their assignee in ban ruptey, upon Simon Cohen, and upon said firm; also, that

which the suit was brought, to-wit, a note for $17,000, a no for $8,000, and a note for $5,000, were fraudulent and to as against said firm for want of consideration; also, that be declared and decreed that certain transfers of money, bi of lading, promissory notes, and other property, to the i

1.6.00.8-48

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