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pendent and distinct thing, namely, to pay a sum of money, and at another place.
We are of opinion that, under the circumstances of this case, no error was committed in requiring evidence, other than the indictment itself, that the court in Missouri had cognizance of the offense alleged, or in discharging the prisoner, upon the failure of the government to comply with that requirement. Therefore the judgment is affirmed.
STATE OF INDIANA V. TOLLESTON CLUB OF CHICAGO et al.
A suit by a state in one of its own courts against a citizen of another state is not removable to a federal circuit court on the ground of diverse citizen
ship of the parties. 2. SAME-REMAND BY COURT OF ITS OWN MOTION.
It is the duty of a federal court to remand, of its own motion, whenever on the face of the record a clear want of jurisdiction, either of the parties or
subject-matter, is affirmatively shown. 3. FEDERAL COURTS-JURISDICTION BY CONSENT.
Neither silence nor positive consent of the parties can confer jurisdiction upon a federal court when such jurisdiction is depied by statute. At Law. Action by the state of Indiana against the Tolleston Club of Chicago and others, commenced in a state court, and removed to this court by defendant. Remanded for want of jurisdiction.
A. G. Smith, for plaintiff.
BAKER, District Judge. This action was brought in the circuit court of Lake county, Ind., by the state of Indiana against the Tolleston Club of Chicago, Ill., and 19 others, to quiet the title to, and recover the possession of, numerous parcels of land in said county of Lake, alleged to belong to the state, and which the defendants were alleged to claim as owners without right, thereby casting a cloud on the title of plaintiff. At the proper time, at the September term of the court for the year 1891, the Tolleston Club of Chicago presented its verified petition and bond for the removal of the cause of action against it into the United States circuit court for the district of Indiana. The petition set forth as ground of removal the diverse citizenship of the plaintiff and said defendant, and alleged that the controversy between the state and itself was a separate and separable controversy, in which the plaintiff and the petitioner were alone interested.
No motion has been made to remand, and the question for decision is whether the court of its own motion ought to remand the cause to the state court. Wherever on the face of the record a clear want of jurisdiction, either of the parties or of the subject matter, is affirmatively shown, it is the duty of the court to remand of its own motion. Consent of the parties cannot confer jurisdiction, except in cases where the law has au
thorized the court to exercise jurisdiction. In the case at bar this court has no jurisdiction, except upon the ground of diverse citizenship. Whether such diverse citizenship exists hinges on the question, is the state of Indiana a citizen of the state of Indiana, within the meaning of the removal act, for the purpose of giving this court jurisdiction? This question must be answered in the negative. A suit instituted by a state in one of its own courts against a citizen of another state is not removable into a circuit court of the United States on the ground of a diversity of the citizenship of the parties. Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep. 799; Ferguson v. Ross, 38 Fed. Rep. 161; State of Alabama v. Wolffe, 18 Fed. Rep. 836. There is no federal question presented by the record in this case, and in that respect it differs from the case of Railroad Co. v. Mississippi, 102 U. S. 135.
The want of jurisdiction is affirmatively shown on the face of the record. In such case neither silence nor positive consent will confer jurisdiction, because the parties cannot confer on the court a jurisdiction denied to it by the statute. If this court should try the case, it would be the duty of the appellate court to which it might be taken to reverse and remand, with instructions to this court to return it to the state court. Graves v. Corbin, 132 U. $. 571, 10 Sup. Ct. Rep. 196. This court will not permit a cause of action of which it has no jurisdiction to be tried before it, even if the parties should stipulate in writing to abide its judgment.
Let the cause be remanded, at the costs of the defendant.
NEW CHESTER WATER CO. et al. v. HOLLY MANUFG CO. et al.
A firm owning substantially all the stock of a water company purchased
plainants did not oust the jurisdiction. 48 Fed. Rep. 879, affirmed. 2. EQUITY_PARTIES–JURISDICTION OF FEDERAL COURTS.
In a suit to assert a vendor's lien against specific machinery of a corporation it is not necessary to make the trustee of its mortgage bondholders & party defendant, when substantially all the bondbolders themselves are before the court. The trustee being without the territorial jurisdiction of the court, its presence can be dispersed with under equity rule 47, even though it might otherwise be deemed a proper or necessary party. 48 Fed. Rep. 879,
A firm which owned all the stock of a water company, and whose employes were its officers, purchased pumping engines, contracting that tho game should be subject to a lien for the price, and placed them in the com: pany's works." After erection, the engines remained in the exclusive cbargo and management of the seller's agent. Meanwhile the firm disposed of all
its stock, and conveyed to the water company the land on which the engines stood. Held, that the company had notice of the lien, and took subject
thereto. 48 Fed. Rep. 879, affirmed. 4. SAME-VALIDITY-PUBLIC Policy.
There is no public policy which renders invalid a contractual vendor's lien
upon the pumping engines of a water company. 5. FIXTURES-SALE-INTENT OF PARTIES.
On a sale of pumping engines for waterworks the purchaser expressly agreed that the seller should have a lien thereon, with full right of possession, until the price was paid. Held, that this showed an intent that they should not become a part of the realty, and, under the Pennsylvania deci. sions, this intent was controlling, and the lien was not waived in favor of the mortgage bondholders or other creditors by attaching the engines to the foundation in the usual manner. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.
In Equity. Bill to establish and enforce a lien on certain pumping engines for the purchase price thereof. Decree for complainants. 48 Fed. Rep. 879. Defendants appeal. Affirmed.
Statement by WALES, District Judge: This was a suit in equity, brought in the United States circuit court for the eastern district of Pennsylvania by the Holly Manufacturing Company, a corporation organized under the laws of the state of New York, and a citizen of that state, against the New Chester Water Company and the South Chester Water Company, corporations organized under the laws of the state of Pennsylvania, and citizens of said state: William G. Hopper and Harry S. Hopper, citizens of the state of Pennsylvania, trading under the name of William G. Hopper & Co.; William Bucknell, a citizen of the state of Pennsylvania; Richard Wood, George Wood, Walter Wood, and Stuart Wood, citizens of the state of Pennsylvania, trading under the firm name of R. D. Wood & Co.; and the Bienville Water Sup. ply Company, a corporation existing under the laws of the state of Alabama, and a citizen thereof.
The bill, as originally filed, alleges that on March 21, 1887, the New Chester Water Company made a contract with Samuel R. Bullock and William S. Mercer, citizens of the state of New York, doing business under the name of Samuel R. Bullock & Co., by which Bullock & Co. agreed to construct and equip, at their own proper cost and expense, a system of waterworks at or near Chester, Pa., in the manner and according to the plans and specifications prepared by the chief engineer of the water company: the said works to be completed and ready for occupation on or before the 1st day of January, 1888. Bullock & Co. also agreed to furnish at their own expense all lands necessary for the location of engine and boiler house and reservoir site. On the completion of the works the water company was to cause an inspection and test of the same, to satisfy it that the said works were constructed and equipped in accordance with the terms of the contract. Bullock & Co. covenanted to transfer and deliver the said waterworks and other property to the New Chester Water Company free from and unincumbered by any liens for the benefit of laborers, mechanics, or material men. In consideration of the execution and performance of the contract by Bullock & Co., the water company was to pay that firm $500,000 in first mortgage 6 per cent. bonds of the water company, secured by a first mortgage on all the property and franchises of the water company, as authorized by resolutions of its stockholders and board of directors, and 17,000 shares of its common capital stock at a par value of $50 each. The bonds and stock were all delivered to Bullock & Co. to enable them to proceed with and to procure the construction and completion of the water supply system, and to be used for that purpose, and to the payment of the said Bullock & Co. therefor when completed.' That, for the purpose of carrying out their contract with the water company, Bullock & Co., on August 3, 1887, made a contract with the Holly Manufacturing Company to set up in working order at the pumping station in Chester, Pa., two pumping engines, for wbich Bullock & Co. were to pay to the Holly Manufacturing Company the sum of $50,000 in six specified installments until ihe whole amount of the purchase money of the said engines and connections should be fully paid to the Holly Manufacturing Company. That the Holly Manufacturing Company constructed and erected
the engines in accordance with the contract, and received from Bullock & Co. $8,333.33 on account; and there remains due and owing to the complainant the sum of $41,667, with interest from August 11, 1888. That Bullock & Co., after making the contract of August 3, 1887, with the Holly Manufacturing Company, for the purpose of raising money to carry on the construction of the water works, pledged the bonds and shares of the water company to William G. Hopper & Co. to secure the price of materials and money to be supplied for the completion of the said waterworks.
The bill averred, in substance, the facts above stated, and prayed a decree establishing a lien in favor of the Holly Manufacturing Company, free and superior to any and all liens and claims of any other parties upon the said pumping engines; and, further, that the defendants in this cause may be decreed to pay to the Holly Manufacturing Company the amount ascertained to be due for said pumps at a short day; aud that, in default thereof, the defendants be absolutely foreclosed of all right in equity of redemption in the same.
To tbe bill as originally filed the defendants demurred upon the ground of the Donjoinder as parties in the cause of Samuel R. Bullock and William S. Mercer, trading as Samuel R. Bullock & Co., whereupon the said Samuel R. Bullock & Co. were brought upon the record by an amendment which set forth they joined as parties plaintiff, “not as seeking any special or distinct relief in the premises in this proceeding, but in affirmance of the rights of their coplaintiff, the Holly Manufacturing Company, and in order to invest the court with full jurisdiction in the premises, so that a complete decree, protecting the rights of all parties, can be made.” Tbereupon the defendants answered, inter alia, suggesting that the principal controversy in the cause was between the complainant the Holly Manufacturing Company and Bullock & Co., all of whom were citizens of the state of New York, and that, therefore, the court was without jurisdiction in the premises.
At the hearing upon the bill, answer, and proofs, the following facts appeared:
In the year 1885 charters of incorporation were obtained for four water companies, namely, the New Chester Water Company, the South Chester Water Company, the Penn Water Company, and the Upland Water Company, formed for the purpose of furnishing water for public and domestic use to the city of Chester and adjacent boroughs in Delaware county, Pa. On December 9, 1886, before any work was done by them, a written agreement was entered into between the four named companies in their corporate capacity, all the stockholders thereof individually, and Samuel R. Bullock & Co., a firm of waterworks contractors. The leading purpose of the parties to this agreement is expressed in the following clause of the preamble:
And whereas the stockholders are desirous of selling their said shares of cap. ital stock, and of transferring and surrendering the absolute control of the water companies, and the vendees (Bullock & Company) are desirous of purchasing and acquiring the same, accordingly the stockholders thereby agreed to transfer all the stock of said companies to Samuel R. Bullock & Company, and to deliver to them all the charters, certificates of organization, books, papers, deeds, maps, plans, estimates, stock certificate books, transfer books, minute books, receipts, accounts, contracts, the corporate seals, and all other property of any and every description, kind, or nature belonging to the water companies, or any of them; and, in consideration thereof, Bullock & Company agreed to enter into a contract with the water companies, on terms to be arranged, for the construction and equipment of a system of waterworks for furnishing water to the places which the companies were authorized to supply.”
The stockholders having complied with their part of this agreement, the following transactions took place and contracts were entered into, all on March 21, 1887: Resolutions were adopted by the stockholders of the Penn Water Company and Upland Water Company to sell and convey the franchises and property of those companies to the South Chester Water Company, and such written transfers were executed. Resolutions were adopted by the stockholders of the South Chester Water Company to increase its capital stock from $1,000 to $600,000, and to issue its bonds for $300,000, to be secured by a mortgage upon its franchises and property. Resolutions were adopted by the stockholders of the New Chester Com. pany to increase its capital stock from $500,000 to $1,000,000, to issue its bonds for $500,000, to be secured by a mortgage upon its franchises and property, and that the company guaranty the said bonds of the South Chester Water Company. The New Chester Water Company and the South Chester Water Company entered into an agreement which, inter alia, provided that the former company, by
its machinery, and from its reservoirs, would supply water through the pipes of the latter company to its territory. And, finally, a contract in writing was en. tered into between Samuel R. Bullock & Co. and the New Chester Water Company, whereby the former agreed to provide the necessary land for an engine and boiler house and a reservoir site, and to furnish all material and labor for and to construct and equip waterworks at Chester, to be accepted by the water company after completion and satisfactory inspection and test, for the consideration to the contractors of $500,000 in the mortgage bonds of the water company and 17,000 shares of its capital stock of the par value of $50 each. At that date, March 21, 1887, the stockholders of the New Chester Water Company and the number of their respective shares were as follows: Samuel R. Bullock & Co., 9,995 shares; J. L. Forwood, 1 sbare; W. H. Miller, 1 share; E. F. Fuller, 1 share; Ellis Morrison, 1 share; Charles M. Berrian, 1 share. Each of the last-named five persons then held one share of stock in each of the other named water companies, Bullock & Co. holding the rest of the stock thereof. The proofs fully warrant the conclusion tbat these holdings of stock by Forwood, Miller, Fuller, Morrison, and Ber. rian were nominal and formal, merely to give a legal status to the organization. These five persons constituted the board of directors of the New Chester Water Company, Forwood being president, and Miller secretary. Fuller was chief engineer of the company, and an employe of Bullock & Co. Berrian was the attor. ney of the company. and private counsel of Mr. Bullock. All these five directors were completely under the control and direction of Samuel R. Bullock & Ço. Emil Woltman, the treasurer of the company, was the contidential clerk of that firm. Samuel R. Bullock testified: An arrangement was perfected, whereby the per: sonnel of the New Chester Water Company was subordinated to the management, direction, and control of my firm, based upon the idea that we would carry out the objects for which that company was incorporated. At the dates of several transactions to which reference is about to be made, and from March 21, 1887, continuously down until November, 1888, Samuel R. Bullock & Co. had “the absolute control” of the New Chester Water Company, and the organization of that company was wholly under the management and practically in the hands of that firm. The directors acquiesced in whatever that firm did, and practically were but its agents.
On April 1, 1887, the New Chester Water Company executed a mortgage of its franchises and property, then owned or thereafter to be acquired, to the Farmers' Loan & Trust Company, a corporation of the state of New York, to secure pay: ment of $500,000 of its bonds, payable to Samuel R. Bullock & Co. or bearer, and the South Chester Water Company executed a like mortgage to the same trustee, to secure like bonds to the amount of $300,000. On May 31, 1887, an agreement in writing was entered into between the South Ward Waterworks, a corporation, the city of Chester, and the New Chester Water Company, whereby, for a consideration mentioned, and moving from the last-named company, the first-named corporation agreed to sell, transfer, and convey all its property, real and personal, to the New Chester Water Company. On June 13, 1887. a contract in writing was made between William G. Hopper & Co. and Samuel R. Bullock & Co., whereby, for a specified consideration, the formed agreed to furnish to the latter advances of money upon the bonds of the New Chester Water Company, as earned by and delivered to Bullock & Co., and the notes of that firm, with a deposit as further collateral security of all the stock of the New Chester Water Company and the property of the South Ward Waterworks. On July 7, 1887, Hopper & Co. made a special advance of about $300,000 to Bullock & Co., to enable them to consummate the purchase of the South Ward Waterworks, and as security there. for Bullock & Co. delivered to Hopper & Co. the above-mentioned $300.000 of bonds of the South Chester Water Company. In pursuance of a written author: ity signed “J. L. Forwood, President,” and “W. H. Miller, Secretary,” the real estate of the South Ward Waterworks, by the deed of that corporation, dated and executed July 7, 1887, was conveyed to Samuel R. Bullock in fee. On July 12, 1887, Samuel R. Bullock, by deed of that date, conveyed the said real estate to H. S. Hopper, who, on July 29, 1887, executed and gave to Bullock an instrument in writing setting forth that the conveyance to him was made as security for ad. vances made and to be made by Hopper & Co. to Bullock & Co. All the advances which Hopper & Co. ever made under their contract of June 13, 1887, were made prior to September, 1887. On August 3, 1887, Samuel R. Bullock & Co. and the Holly Manufacturing Company, a corporation of the state of New York, entered into a written contract, whereby the latter agreed to manufacture two pumping engines of specified capacity, and set up the same at the city of Chester, for the