MAISH V. BIRD.

607\

in thti'scase was the 21st of June, 1890. Whether a Judgment could have been taken upon the defendant's default is not material. It may be true that the case could proceed no further until the bringing in of his but he was none the lessin default, and unable to make, any defense without leave of court. If the absent has any property in the state of Ohio, a writ of attachment can be issued against her by the state court, on the ground of non-residence, and she brought innpon service by publication. That could not be done, upon t4e ground stated, in the federal court. While, therefore, there may be an advantage to tpe removil\lg defendant, resulting from the transfer of the cause to this court, the causecannbt be allowed to remain here, unless the petition for removal was filed in accordance with the provisions of law. I think it clear, upon the iacts, that the filing was too late. , . The cause will therefore Le remanded, at the costa of the defendants.

MAJeH ". BIRD

et al.

(OCreuit Court, D. Iowa, C. D. August, 188').)

L RBMOvAL OP

In a lIui'tiin a state court between citizens of the state to foreclose a mortgage, a non-residen.t. who was wade. ".party defendant on the ground .that he claimed some interest in the property, a cross-bill alleging that the mortg-age was fraudulent and void, and praYing' a decree' to set it· aside. HeZd, that the matters set forth were:purely matters of defense, which .might properly have been set up by answer, and hence the issues were subordinate to and inseparable from the main' controversy, and the nOll"residentdefendantwas not entitled to remove the cause to a federal court.
tels oreaWs no lien thereon, .in the absence of an actual levy.

CONTROVERSy-FoRECLOSURE OP MOBTGAGIL

S.

ATTACllJQNT-GuNlsmmNTOil' PERSONS IN POSSIIlSSION-LmN.

The ervice of garnishment process upon: persons in possession ot: apeo1flc chat-

In Equity. Suit to foreclose a chattel mortgage. On motion to remand to the state court. Wright, Ounnmins & Wright, for plaintiff. N(iUree .AC: 'Kauffman and Brown &: DudJ.ey, for defendants. McCRARY, J. Maish, thfilholder and. owner of executed by Bird, brought his suit in a state court. to foreclose the same, making Morrison, Harriman & Co. defendants, on the that they claimed aninterest in/the mortgaged property. Maish and Bird are citizens of Iowa,. and .MQrrison, Harriman & Co. citizens of New York. The latter appeared and filed a cross-bill, alleging that the mortgage sued on is fraudulent and void, and. praying a decree to set it aside; and thereupon theY' petitioned the state court for a removal of the cause to. this on the ground that, under. their cross-bill, there is a controversy wh911y between ,citizens of different states, and which can be fully determined as between them. The original suit was not'removable. It was a ceeding,as to the main controversy, by one citizen9f Iowa against an-

608

FEDERAL REPORTER,

vol. 48.

other. There is nothing in the cross-bill that would have been improper in 'an answer except the'prayer for affirmative relief; I am of the opinion' that the non-resident deftmdants could not, by filing a cross-bill of this cha.racter, so change the nature of the suit as tOJIilake it removable, an<rthus compel Maish and Bird to' bring theil" controversy here. If this isfwithin the power' of any non-resident who happens to be made a defendant in foreclosure proceedings in the state courts, the consequences must be very Across-bill isa defense. It cannot be,employed for the purpose ofintroducing into the suit any distinct matter. It is only auxiliary to the original suit, and a graft and dependency on it. The' and cross-bill together constitute but one suit. We cannot look alone to the cross-bill to determine whether the suit is removable. 3 Daniell, Ch. Pro 1851; Ayers v. Chicago, 101 U. S. 184; Dcmohoev. MiLriposaCo., 5 Sawy:463. It is not necessary to determine whether, in any case, a defendant in a chancery suit in a state court can, by allegations in a cross-bill, present issues upon which he can remove the cause to a federal court, when the parties to the main controversy. the obligor and obligee in the contract sued on, are citizens of the same state. It is only necessary, in this case, to hold that where the facts alleged in the cross-bill are purely defensive in their nature,and such as may properly be alleged by way of answer, no right of removal can be acquired by presentin,g them in the, form· of across-bill. A careful consideration of theiecord ,also satisfieS me that tlu\re is no fleparate controversy the cross-pjIl which can be wholly determined without reference to the issues joined upon the originlll Should Morrison, Harrhnan & Co. !\ustain by proof the allegation!! of ·the cross.bill, they would do. no more than establish a good defense to the complainant's suit, and decree for all ,the .defendants would Jollow. If the allegations of the cross-bill shbulg.not.be sustained by proof,. then the trial would Lecome a controversy solely between mortgagor and mortgagee, both cit.izens of Iowa. Thus it is seen that the issue presented by the cross-bill is incidental andsubOl'dinatei and not a separate controversy, distinct from the main case; which can be -con.. sidered and by itself.· ., There is andther serious difficulty in: the way of otirretaining jurisdiction of this case. Conceding that the cross-bill is all that counsel for defendants Claim for it,-that is to say, that it is a separate suit or controversy',' in which Morrison, Harriman & Co. claim affirmative relief outside of and independently of the issues joined upon the origInal bill,does it not follow that it is in substance and effect a ;creditors' bill, brought to set aside an alleged fraudulent conveyance by-the debtor? It alleges thatHird is indebted to Morrison, Harriman & Co.; that they have commenced proceedings by attachment and garnishment to enforce their claim against certain property; and that Bird has made a fraudulent mortgage conveying said property to complainant, Maish. A lien upon the property is claimed, not by virtue of a levy of the attachment thereon. but by reason of the service of the process of garnishment upon complainant and upon the Iowa National Bank, alleged to be in posses-

IN RE HELENA & LIVINGSTON SMELTING & REDUCTION CO.

609

sion of the mortgaged property. Are these allegations sufficient to give a federal court of equity jurisdiction, and to entitle the plaintiffs in the cross-bill to relief? It would seem not. Jones v. Green, 1 Wall. 330. It is· more than doubtful whether such a bill can be maintained upon the ground that the complainant has issued an attachment and caused it to be levied upon the property; because, if such be the case, it would seem thllthis remedy would be by proceeding to judgment in the attachment cause, and by selling, or oflering to sell, the attached property upon special execution. But, however this may be, it appears from the allegations of the cross-bill in this case that no levy upon the property has been· made. It is clear that no lien was obtained by the garnish.. ment of the parties in possession. Mooar v. Walke-r,46 Iowa, 167; White v. Griggs, 54 Iowa, 651, 7N. W. Rep. 125; Silve:rmanv.Kuhn, 53 Iowa, 452, 5 N. W. Rep. 523. . 1 do not inquire what the practice in the state courts may be, for in equity causes, whether originally brought in the federal courts or removed from the state courts, the former are bound to observe the general principles of the equity practice and jurisprudence. It follows that the motion to remand must be sustainedj and it is so ordered.

In re

&

LIVINGSTON SMELTING

&

REDUCTI()N

Co.

(Circuit Oourt, D. Montana. November 28,.1891.)

L

An action in a state court, based upon an allegation that the defendant, In operating its quartz-mill, by means of a water-right claimed by it, has poured over the complainant's lands a quantity of tailings and debris, only questions the defendant's right so nse the land, and does not involve any right secured by Rev. St. U. S· . §§ 2339, 23W, which declare that vested water-rights shall be protected, and all patents"granted and pre-emption or bomesteads allowed shall be sUbjecttheretoj and hence the ·cause is not removable to a federal court on the ground that It involves a right secured by the laws of the United States.
,

REMOVAL OF CAUSES-FEDERALQUESTION-WATER-RIGHTS.

.. SAME. ,.

Under Rev. St. U. S. § 2ll89, declaring that vested water-rights, "recognized and acknowledged by the local customs, laws, and the decisions of the courts " shall be protected, the question whether defendant, in using a water-right for the operatioll ot, his quartz-mill, has a right to pollute the water of the stream, is purely a question of local law, and cannot be made the ground of a removal to a federal court.

Petition by the Helena &; Livingston Smelting &; Reduction Company for a writ of certiorari commanding a state court of Montana to remove the cause of John J. Hall against said company to the United States circuit court. Writ denied. Cullen, Sander8 &- Shelton, for petitioner. AdkinBOn &- M"Uler, for respondent.
KNOWLES, J. In this case the Helena &; Livingston Smelting & RednctionCompany petitions this court for a writ of certiorari, directed to v.48B'.no.S-39