WAI'1'E
v.
PHOENIX INa. 00,.
769.
WAITE v. PHOENIX INS. po. (Olrcult Court, M. D. Tennessee. May 10, 1894.) No. 2,947. L REMOVAL OF CAUSES-FILING OF PAPERS IN STATE COURT-RECORD.
The fact that the petition for removal and accompanying papers were not marked "Filed" before their presentation to the state court is immaterial, when It appears from the copy of the record and the clerk's certificate that they were a part of the record and in the files of the cause. They became part of the record when they were presented and tendered to the court; whether they were marked "Filed" or not.
B.
SAME-ADDITIONAL PETITION TO FEDERAL COURT.
A petition presented to the federal court with the removal papers, and alleging facts not stated In the petition to the state court, cannot be looked to alS conferring jurisdiction, if the latter petition doelS not state sufficient grounds for removal. On the third day of the term at which suit in a state court for $3,000 was made returnable, plaintiff having filed no declaration, defendant prelSented a petition, affidavit, and bond for removal. On the same day plaintiff was allOWed to amend his original summons so as to reduce his demand to $1,999.95. Held, that the right of removal depended on whether the petition therefor was prelSented before the amendment was made, and that this was a question which the federal court was authorized to try and decide before deciding the motion to remand. Where a. state court continues to assert jurisdiction after the filing of removal papers, defendant does not waive his removal by agreeing that the case shall stand under the rule to plead and try at the next term.
8.
SAME-RIGHT OF REMOVAL-AMENDMENT REDUCING DEMAND.
4.
SAME-WAIVER OF REMOVAJ.-AGREEMENT FOR TRIAL IN STATE COURT.
This action was commenced in a state court by William Waite against the Phoenix Insurance Company, and was removed by defendant to this court. Plaintiff moved to remand the case to the state court. Thos. R. Myers, for plaintiff. W. L. Eakin and John Buhm & Son, for defendant. KEY, District Judge. This suit was commenced in the circuit court of Bedford county, Tenn., returnable the first Tuesday after the first Monday in August, 1893, which was the 7th day of the month. On the 10th day of the month, which was the third day of the term, plaintiff having filed no declaration, the defendant presented to .the court its petition, affidavit, and bond for the removal of the cause to this court, and a motion is made on behalf of plain. tiff to remand the cause to the state court. The petition for removal alleges the diverse citizenship of the par· ties, that the amount in controversy exceeds, exclusive of interest and costs, the sum of $2,000, and tenders the requisite bond for removal. Upon its face the application for removal appears to be such as to authorize the removal sought. It is insisted that the record does not support, but, upon the contrary, contravenes, the al· legations of the petition, because it does not show that the petition and accompanying papers were filed. The copy of the record shows that they were a part of the record, and the certificate of the clerk verifying the record states "that the foregoing is a correct copy v.62F.no.9-49
FEDl!:RAL' BBPORTER,vol.
62.
of the summons, entries on minutes, and paper s filed in the case." The copy of the recoMshows' that theY are a'part of the record, and are in the files of 'the ,cause. ,W1:).ether they'were marked "Filed" before their presentation to- the court is not materiaL prese;q.ted to and tendered to the court they When , " became, a the r¢'cprd1 i,. Defendant accompanies, his. record w,ith a petition to this court alleging'fa¢ts to the state court. Itcllnnot to conferriilgjurisdiction on. this court. If 'the petition hi the state 'court does,not allege' sufficie,nt. grounds for removal, its failure to ,do SQ cannotpe remedied by, the amended petiticm·. be look.ed to Wihen the petition filed in the state Ci>'fuit its SUfficient gr(jundsfor removal to the circuit court of the Unltiid 'States, andniay be a.¢ended in the latter court by a,d(liP:g to stateJ;Ilent of tllEdacts' to the ipetitionupon, which tJae(,statementsin it were grounded. Car-' v.Dunham;'121 U.S. iJ,21-430, 7 Sup.Ct. 1030. '1'his that defendant's petition for removal was preJAl893. ]tshows that upon same daythe,.plaintiffwas allowed to amend his original summons so as reduce'the dama:geselaimedfrom $3,000 to $1,999.95. The dam$3,000. If defendant's ages laid in the summons" originally petition ,for ,reffioV8,l vfas, ,pres.ented .to tne court before plaintiff's totlmenj} waB, tl;J.at removed the suit, and the state court could take no further step therein. There would be nothing 9fthe,suit left in the court upon which the court could operate.' qh, If the motion to amend was prior in,time, the suit }vas not the presentation of the petition was tirst, that petition could not allege the fact of the motion to amend and the amendment, because, these facts occurred subsequent to its preparation and presentation. In the light of this record I do not,think the order made August 18, 1893, that the case should Btand under the rules to plead and try at the next term of thecourtj the parties by their attorneys agreeing thereto, the defentla,nt waived its removal. The court, by its amendment, was asserting, i"ts juriSdiction, and 'the· defendant might litigate' in' that forum without a surrender or wai'Vel' of its removal. Insurance Go. v; Dunn, 19 'Wall. '214,'227; KanoUsev. Martin, 15 How. 208. It aeeml3to me1that the controlling point as to the jurisdiction of this causeig;as fu whether the petition for removal or the motion to amend is {'rior in time; and this is 'a fact this court may try before determining finally the motion to remand. Railroad Co. v. Dunn, 122 U. 8;517,7 Sup. Ct;1262, If it turns out that the applicatiOn to remove :is,flrstin time, the damages laid in plaintiff's summons will pre'\Teht him from. denying that the amount in controversy of interest and costB. . ' did not exceed $2;000, '!The partieliH:othis suit' ha:veuntiI the rUle day in June next to take regaild,to tne prioritYlolthe presentation of defendant's applidatlon for the suit, or of the motion to amend the plaintiff's summons by a reduction of the damages tberein. Final action upon the ,moti0u to remand' will be reserved until after the coming in of said proof.
PJiiNliy.·V.AUGUST.A.: Ii K. ·R.CO.
771
PBINIZY et aI. v. AUGUSTA & K. R. CO.. ct aI. CENTRAL TRUST CO. OF NEW Y,ORK v. PORT ROYAL &,W. 0. RY. CO. Ex parte COMER et al. (.Circuit Court, D. South Carolina. AugustlS,1894.) 1. RECEIVERS-'-EXl'ENSE OF Ol'ERATING BRANCH OF CONSOLIDATED ROAD.
2.
SAME-'IMI'ROVEMENTS.
SAME-IMPROVF,MENTS-SUBORDINATION TO LIEN OF MORTGAGE.
SAME-INTERES'l' ONlI0R'l'GAGE BONDS.'
As the roads forming the subordinate company, on consolidation, took and held such branch subject to the mortgage, and by statute (Gen. St. S. C. § 1428) assumed li/Lbillty for tl)e debt, receiver's claim for inter. est paid on such mortgage bonds is subordinate to the lien of the mortgage,
Petition of H. M. Comer and R. Somers EIayesr,receivers of the Central Railroad & Banking Company of Georgia, for allowance of certain expenditures. Lawton & Cunningham and Mitchell & Smith, for petitioners. W. K. Miller, W. G. Charlton, Charles H. Phinizy,· N. B. Dial, and J. R. Lamar, for respondents. SIMONTON, Circuit .rudge. These cases now come up upon a petition of Comer and Hayes, receivers of the Central Railroad & Banking Company of Georgia, setting up certain claims against the Port Royal & Western Carolina Railway Company, for balances due on operating expenses while the said road was in the hands of H. M. Comer, receiver, $129,225.31, and for the value of certain steel rails laid during the same period on the Augusta & Knoxville Rail· road, a part of its system, $40,084.52 and for interest paid on the first-mortgage bonds of the Augusta & Knoxville Railroad Company, $22,277.50, and praying that receivers' certificates ma;r be issued for the total amount claimed to be thus due. The Port Royal & West· ern Carolina Railway Company is made up of several roads. Among them, and the principal part, is the Augusta & Knoxville Railroad. Upon this road is a first mortgage, securing a number of bonds. Uponthe whole system of the Port Royal & Western Carolina Rail· way is a mortgage, subordinate to this first mortgage on the Au· gusta & Knoxville Railroad, at least over the property of this last· named road. The certificates asked for would be prior in lien to both mortgages. The Central Railroad & Banking Company 01 Georgia, for which the petitioners are receivers, was a large and