East Saginaw courier. (East Saginaw, Mich.) 1859-18??, 1862-02-18
isUPREME COURT.

OcloW, Wtlc toheh ''S"a s"s' ~"""'y " |
writ Of error, aud were argued at Lansing
during the recent January term. These
opinions will be interesting to many, bo-
sides the parties. We give the opinions in
full:
SAMUEL W YAwKEY, VINO was impleaded with
CURTIS EMERSON, Plaintiff IN Error,
JOHN H. RICHARDSON 4 PAscHAL RICH
ARDSoN, Defendants in Error
This case was tried in the Circuit
Court before the late Judge Woodwork,
without a jury. WM' l.. WEBBER and
j. g. SUTHERLAND, Attys. for P'G in
Error SJoHs MOORE, Atty for Deft's in
Error. ..-9
..- OPINION.
The action below vas brought by the
defendants in error against tine plaintiff
in error and Curtis Emerson, upon the
common counts, for goods sold and dcliv-
cred. Evidence having been introduced
to make out the plaintiffs case which had
no tendency to show any but sole trans
actions Of Yawkey, the plaintiffs, without
any affidavit or statement showing mad
vertance, introduced stipulation signed
by Curtis Emerson, authorizing them 10
discontinue as against him, and thereupon
moved to discontinue the suit as to EN-
ersen, so as to have it to proceed against
Yawkey alone. This was resisted upon
a(iidavits showing that when the suit was
commenced Yawkey was resident and
citizen Of the State of Illinois, and that
previous suit having been commenced
against him in the same court for the
same cause Of action, he applied under
the act of Congress to have it removed
to the Circuit Court of the United
States for the District Of Michigan, when,
upon the decision in his favor Of the ap-
plication, the plaintiffs discontinued be.
, fore the order was entered.
The Circuit Court for Saginaw County
upon these Showings, nevertheless, per-
United plaintiffs to discontinue as against
: Emerson, and directed the suit to proceed
u against Yawkey alone. Other questions
arose upon the trial, but we do not pro-
. pose 10 consider them.
: The act of Congress allowing de-
: PENDANT who is citizen Of one State sued
in court of State of which he is not a
citlzon by those who are citizens of the
: latter State, to file petition of removal
when he enters his appearance, snch re-
moval when applied for in due form, and
at that time, is a matter Of right
: Brghtley Dig. 1919. But the statute will
o not allow this application to be postponed
q until other steps are taken in the cause
= by the applicant. Neither can the cause
J be removed if there are other material
defendants who are citizens Of the same
State with plaintiffs, inasmuch as the ju.
o risdicton arises under the United States
g Constitution, which restricts this class Of
% cases in that respect, 1t will be apparent,
j. therefore, that the effect of the proceed
}, ings in the case before us upon the by.
;, pothesis set up in defendants afiidavits
It was, by joining Emerson as a defendant,
a to Dust Yawkey of his right to remove
l. the case to the United States Court, when
r, by the disoontinuauce case is left which
It but for that defect he would have beer
3, entitled of right to have transferred.
Of The statutes provide that the Suprem
e Court may make rules to cffectualy pre-
Q, vent the defeat or abatement of any civi
IN suit, er contracta for either any non
IL joinder or misjoindcr Of parties. ,0here III
= same can BE- done consistently with justice -
ir r. Comp. l.. S359O.] Rule II of tn
q Circuit Court rules was adopted to carr.
: out this provision, and makes it lawful 70
40 the Circuit Courts to permit such disoon
- tinuance upon terms.
On 1t was claimed by defendants in erro
that the liberty to discontinue under tina
u' rule was, il not an absolute right of til
10 party at least in the uncontrolled discrt
NC =, ton of the court, and also, that if COZ
> trollable, it must be by mandam~, and nc
by exception. 's
W 1t is true that matters resting entircl
80 in discretion cannot usually be reviewed
!, But it would be going to very dangeror
:" lengths to hold that any legal right ca
~ ever rest in the discretion of court, {
70 that under the pretext of discretion thcl
!, should be Immunity for gross frauds an
~ abuses. We have already decided
III .Bssshsm o.. Henick, 8 Mich. r., that tn
~ right of discontnuance is subject to lin