BANK V. TURNBULL & CO., 83 U. S. 190 (1872)

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U.S. Supreme Court

Bank v. Turnbull & Co., 83 U.S. 16 Wall. 190 190 (1872)

Bank v. Turnbull & Co.

83 U.S. (16 Wall.) 190


Where a proceeding in a state court is merely incidental and auxiliary to an original action there -- a graft upon it, and not an independent and separate litigation -- it cannot be removed into the federal courts under the Act of 2d of March, 1867, authorizing under certain conditions the transfer of "suits" originating in the state courts.

By the statute law of the state just named, it is enacted, that when an execution has been levied, and a party other than the defendant asserts a claim to the property levied on, the sheriff, before proceeding to sell, may require of the plaintiff an indemnifying bond, upon the delivery of which the claimant of the property may execute "a suspending

Page 83 U. S. 191

bond," the effect of which is to delay the sale until the claim thereto can be adjusted. If the claimant desires that the property should remain in the same possession as when the levy was made, he may execute "a forthcoming bond," and thereupon the property remains in such possession at the risk of the claimant. This is the statute remedy to try in such case the right of property, and is termed an interpleader.

This statute being in force, the First National Bank at Alexandria, Virginia, obtained a judgment in the state circuit court for the County of Alexandria, against Abijah Thomas for $4,700, with interest and costs. Upon this judgment an execution issued and was levied upon some cotton at Alexandria. Certain persons, to-wit, Alexander and John Turnbull, citizens of the State of Maryland, with Alexander Reach, a citizen of the State of New York, trading together as Turnbull & Co., asserted a claim as owners of the property thus levied on, and, thereupon, the sheriff, before proceeding further under his levy, demanded of the plaintiff in the execution an indemnifying bond, which demand was complied with. Turnbull & Co., then caused to be executed both a suspending and forthcoming bond, thereby preventing a sale of the property levied on. Under authority of the statute, the Circuit Court of Alexandria, in which the judgment was rendered, upon the petition of Turnbull & Co., as claimants of the property, entered an order, directing an issue to be tried by a jury, to determine the right to the property thus levied on, and in such order adjudged that Turnbull & Co. should be plaintiffs on the trial of the issue. Before any further action, however, was taken under this order, Turnbull & Co. filed a petition to said court, praying for a removal of the suit to the Circuit Court of the United States for the District of Virginia. This petition was filed in virtue of the Act of Congress of March 2d, 1867, which enacts:

"That where a suit is now pending or may hereafter be brought, in any state court in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, and the matter in dispute exceeds

Page 83 U. S. 192

$500, exclusive of costs, such citizen of another state, whether he be plaintiff or defendant, may [on compliance with certain conditions prescribed] file a petition in such state court for the removal of the suit into the next circuit court of the United States, to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court on the first day of its session copies of all process, pleadings, depositions, testimony, and other proceedings in said suit, . . . and it shall be, thereupon, the duty of the state court to accept the surety, and proceed no further in the suit. And the said copies being entered as aforesaid in such court of the United States, the suit shall then proceed in the same manner as if it had been brought there by original process."

The application to the state court was refused, and Turnbull & Co. thereupon petitioned the judge of the district court at chambers for a mandamus to compel the removal. This being granted, the case was brought into the circuit court and there docketed.

Upon the calling of the case there, a motion was made by the counsel for the bank to dismiss the same for want of jurisdiction, which motion was overruled, and thereupon, a written stipulation was signed by the counsel of the respective parties providing that a jury should be waived, and the cause submitted to the decision and judgment of the court. Upon a full hearing of the case under such submission, the court decided, that the property in controversy was not liable to the execution of the bank, and gave judgment in favor of Turnbull & Co., with costs. To that judgment a writ of error was sued out from this Court.

The record did not show that any process had been issued or declaration filed against the bank; or that the bank had pleaded, demurred, or otherwise answered.

On the calling of the case here, after the judges had looked at the record, the Chief Justice signified to the counsel that the court was not satisfied that the case had been one for removal under the Act of March 2, 1867, to the circuit court, and directed them to speak to that point.

Page 83 U. S. 193

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