PEOPLE'S BANK V. CALHOUN, 102 U. S. 256 (1880)

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U.S. Supreme Court

People's Bank v. Calhoun, 102 U.S. 256 (1880)

People's Bank v. Calhoun

102 U.S. 256


1. An action pending in a state court cannot be removed to the circuit court by written stipulation where there is nothing in the latter or the record to show that, by reason of the subject matter or the character of the parties, the latter court can take cognizance of it.

2. In a foreclosure suit, the circuit court, having jurisdiction of the subject matter and the parties, appointed a receiver, who, pursuant to its orders, took possession of the mortgaged road. In an action between other parties subsequently brought in a state court, an attachment was sued out and levied upon the road. Pending an application thereupon made to the circuit court to restrain the plaintiff from further proceeding with his attachment, he and the defendant to the action consented to its removal to the circuit court, where, upon a finding that the road was not, at the date of the levy of the attachment, the property of that defendant, the writ was dismissed. Held that the circuit court had the right to determine upon the conflicting claims to the possession of the road, and that the parties to the action, by consenting to transfer it, did no more, in effect, than that court might have compelled them to do.

3. The deeds of the defendant transferring his interest in the road to the trustees named in the mortgage and to the railroad company bear date before the attachment against him was sued out. They were thereafter recorded. Held that they were admissible in evidence.

The People's Bank of Belville brought an action in the Circuit Court of the County of St. Clair, in the State of Illinois, at its April Term, 1876, against Edward F. Winslow and James H. Wilson, on two promissory notes, on which it alleged that the sum of $40,733.36 was due. At the commencement of the action, the bank, upon filing the requisite affidavit setting

Page 102 U. S. 257

forth, among other things, the nonresidence of the defendants, obtained a writ of attachment, which was levied on the right of way, iron track, &c., of the road known as the Belleville and O'Fallon Railroad and its appurtenances situate in that county. During that term, the following stipulation, signed by the attorneys of record of the respective parties, was filed:

"It is stipulated that on the fifth Monday of the term, or at any subsequent day of the term, this cause shall be removed to the proper circuit court of the United States, as by consent, petition, and bond waived, and all defendants agree to file the record of the cause in that court before the first day of the June Term, A.D. 1876, defendants' pleas to be there filed with record."

On the said fifth Monday, the court, pursuant to that stipulation, ordered

"that this cause be removed to the Circuit Court of the United States for the Southern District of Illinois, and that the clerk of this court certify a transcript of the papers and proceedings in this cause to said court, according to the statute in such case made and provided."

Philo C. Calhoun and George Opdyke, trustees named in the mortgage executed by the St. Louis and Southeastern Railway Company to secure its bonds, filed their bill of foreclosure in the said Circuit Court for the Southern District, Oct. 21, 1874, and the court thereupon appointed a receiver and put him in possession of the mortgaged property, including that upon which the attachment sued out by the bank was levied.

After the record of the attachment suit was filed in the latter court, Calhoun and Opdyke presented, under a statute of Illinois permitting such a proceeding in attachment cases, a petition of interpleader alleging that they, as trustees, and not Window and Wilson, were the owners of the railroad on which the writ had been levied, and praying that the attachment be dissolved. No defense was made by Window and Wilson to the suit against them, and the court rendered judgment against them for the sum due on the notes, and in the record of the judgment was incorporated an order of sale of the attached property. The issue made by the petition of Calhoun and Opdyke was tried sometime after this, and judgment rendered in their favor, with an order dismissing or dissolving the attachment. This

Page 102 U. S. 258

latter issue, though triable by jury, was submitted to the court by an agreement waiving the jury.

A bill of exceptions, embracing sixty pages of the printed record, gives the history of this trial, and concludes as follows:

"And now the court found the said property in said interplea described to be the property of said interpleaders, and that it was not subject to the said attachment, and was not the property of Edward F. Window and James H. Wilson at the date of levy of said attachment, but was the property of the interpleaders, to which ruling and decision of the court the plaintiff, by its counsel, at the time excepted."

"And the court ordered said attachment to be dismissed, and to this ruling and decision of the court plaintiff, by its counsel, at the time excepted, and inasmuch as the matters and things above set forth are not of themselves matters of record in said cause, the plaintiff presents this its bill of exceptions, which it prays may be signed and sealed and made part of the record, which is done."


An exception was duly taken to the admission of certain evidence, which is mentioned in the assignment of errors and stated in the opinion of the court.

The bank sued out this writ, and assigns for error that the court below erred:

1. In assuming and taking jurisdiction of the said cause.

2. In trying said cause and rendering judgment therein.

3. In dismissing the attachment.

4. In finding that the property levied upon by virtue of the attachment was not subject thereto, when it had at a previous term rendered judgment for the amount of the note sued on, and ordered that property to be sold to satisfy the writ.

5. In permitting the deed from James H. Wilson and wife, and Edward F. Winslow and wife, to George Opdyke and Philo C. Calhoun, dated Jan. 4, 1876, and recorded in April, 1876, purporting to convey the property levied on by the attachment, to be read in evidence on the trial of the issue made on the interplea of Opdyke and Calhoun.

6. In permitting the deed from James H. Wilson and Edward F. Winslow, and their wives, to the St. Louis and Southeastern Railway Company (consolidated), dated Jan. 5, 1876, and recorded in April, 1876, purporting to convey

Page 102 U. S. 259

the property levied on by attachment, to be read in evidence on the trial of the issue made on the trial of that interplea.

Page 102 U. S. 260

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