CASES

ARGUED AND DETERMINED

IIi THJIl

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS.

HURST

V.

OOBB et aJ. April 5, 189f.)

COOKE v. SAME.

(CIreuit Court, N. D. Texas.

Nos. 1,808, 1,809.

RsKOVAL 01' CAUSES-CASES ARISING minER FEDERAL

LAws. An action against private parties to recover damages for wrongfully causing a United States marshal to levy an execution on plaintiff's chat· tels is a case arising under the laws of the United States, and is therefore removable under section 2 of the act of AUgUst 13, 1888. Bock v.. Perkins, 11 Sup. Ct. 677, 139 U. S. 629, applied.

This is an action at law, brought in a court of Texas by J. D. !Hurst against Cobb & Avery, to recover damages for wrongfully causing a United States marshal to levy an execution of chattels. Defendants removed the case to this court, and it is now heard on a motion to remand. McCormick & Spence, for plaintiff. Cobb & Avery, in pro. per. RECTOR, District Judge. In this case the plaintiff surd the defendant in the district court of Hunt county, Tex., for $4,977, the alleged value of 170 head of cattle belonging to plaintiff, upon which defendants caused an execution, in the hands of P. B. Hunt, United States marshal for the northern district of Texas, to be levied, and said cattle sold under said execution. That said execution issued out of cause No. 1,036, wherein W. W. Avery, as plaintiff, recovered a judgment in the United States circuit court in and for the northern district of Texas, against J. H. Cooke, O. F. Hail, 'Villiam Hodges, and J. M. J<lhnston, for $2,638. That said Hunt, United States mar· shal, acted by and through his deputy, T. B. McMurray, in levying said execution on said cattle, and also in selling them. That said defendants caused said execution to be issued and levied on said v.6b'.no.l-l

2

FEDERAL REPORTER,

vol. 61.

properly of plaintifr, and caused the same to be sold thereunder. averring that the Defendants filed their application-Jor property levied on and sold bnder the 'execution by the marshal was the property of the defendant in the execution, J. H. Cooke, and that the damages claimed_ '9-gai,nst the defendants in the case at bar arose entirely out of the acts of the United Statesdmarshal and his deputies. Defendants say that their defense arises under the constitution and laws of the United States. 2. The case was removed to this court on said application of defend.,-ts,.and now the 'plaintiff appears, and moves that the case be remanded to the state court, "because the record discloses no removable federal qUefltion." 3. Section 2 of the removal act of March 3, 1875, provides:
"That any suit of a civil nature at law or in eqUity now pending or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the constitution or laws of the United States, either party may remove said suit," etc.

1888, so as to read as follows:

The said section was afterwards amended by act of August 13,

"Sec. 2. That any sultpf a civil natqre at law or in equity arising under the constitution or laws of the United States, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending or which may hereafter be brought in any state. court, may be removed by the defendant or defendants therein to the circuitcoili't of the United States for the proper district." 1 Supp. Rev. St. (2d Ed.)· p. 612.

When we turn to the.drst section ofthe same act, we find:
"That the circuit courts of the United States shall have original cognizance concurrent with the courts of the several states of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000.00, and arising under the constitution or laws of the United States." See page 611.

4. The contention here is whether this case arises under the constitution or laws of the United States. In Carson v. Dunham, 121 U. S. 427, 7 Sup. Ct. 1030, the court draws the distinction between the second section of the act of 1875 and section 709, Rev. St., which provides for review by the supreme court of the decisions of the highest courts of the states, and says:
"That under the act of for the purpose of removal, the suit must be one arising under the constitution or laws of the United States, or treaties made o.r which shall be made under their authority; that fs to say, the suit must be one in which some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the constitution or law or treaty of the United States, or sustained by a contrary construction."

The case of Bock v. Perkins, 139 U. S. 629, 11 Sup. Ct. 677, was an action against the United States marshal and his deputies for levying an attachment on goods in the possession of Bock, the plaintiff in error. The attachment was sued out against Lane, who had assigned the goods to Bock. The case was removed to the United States court, and there was a motion to remand, which was overruled. The supreme court sustained the removal to the United States circuit court, and in so doing say:

SWEENEY V. GRAND ISLAND & W. C. R. CO.

3

"A case, therefore, depending upon the Inquiry whether the marshal or his deputy bas rigbtfully executed a lawful precept directed to tbe former from a court of tbe United States Is one arising under tbe laws of tbe United States. for, as tbis court bas said, cases arising under the laws of tbe United States are such as grow out of tbe legislation of congress, wbetber tbey constitute tbe rigbt or privilege or claim or protection or defense of the party, In whole or in part, by wbom they are asserted. This case was one arising under the laws of the United States, and therefore removable."

To the same effect is Ellis v. Norton, 16 Fed. 4; Houser v. Clayton, 3 Woods, 273, Fed. Cas. No.6,739. In the case of Howard v. Stewart (Neb.) 52 N. W. 714, the plaintiff in execution had given bond to the marshal, and, when the latter was sued, plaintiff intervened, set up the facts, and asked to remove case to the United States court. Held he might remove, as the marshal had that right. It seems to us in the case at bar that, inasmuch as the United States marshal, if sued in the state court, might remove the case to this court, that the defendants can also do so. Motion to remand overruled. Let the same order be entered in No. 1,809, of John H. and M. E. Cooke v. Cobb & Avery.

SWEENEY v. GRAND ISLAND & W. C. R. CO. et aL

(CirCUit Court, D. South Dakota, W. D.

April 14, 1894.)

REMOVAL OF CAUSES-SEPARABLE CONTROVERSy-SUIT TO ENFORCE MECHANICS' LIENS.

A suit to enforce a mecbanlc's lien against a railroad, under a statute wbich requires all lien bolders to be made parties, and their claims and priorities adjudicated (Laws S. D. 1893, c. 116, § 4), is not removable on the ground that there fs a controversy between plaintiff and the railroad company which is separable from the matters affecting other lien bolders who are defendants, and citizens of the same state witb plaintiff. Supp. Rev. St. p. 612.

This was an action by Thomas Sweeney against the Grand Is· land & Wyoming Central Railroad Company; John and David Fitzgerald., copartners as John Fitzgerald & Bro.; John Carroll, Samuel E. Donoghue, and Frank P. Phillips, late copartners as Carroll, Donoghue & Co.; and the Congdon & Henry Hardware Company. The action was brought in a state court to enforce a mechanic's lien; and was removed to this court by the railroad company. Plaintiff moved to remand. Charles W. Brown and Ma.rtin & Mason, for plaintiff. N. K. Griggs, for defendant Grand Island & W. C. R. Co. SANBORN, Circuit Judge. The plaintiff, Thomas t3weeney, makes a motion to remand this case to the circuit court of Pennington county, S. D. He brought this action in that court to enforce a mechanic's lien against certain real property of the railroad com· pany situated in South Dakota, upon which the Congdon & Henry Hardware Company also claims to have a similar lien. The rail·