The New York herald., 1868-04-21
UNITED STATES CIRCUIT COURT.

u1OtlOu 10 Ol9sOkve the AuJuucuOn Deuho0e
Rlyus Hatch, on Behalf Of Himself and Au Other
Stockholders Of the Corporation, Defendants Heretm,
cs. the chicago, Rock Island ana Pactac Railroad
Conap0nV John +. Tracy and Others.-BLAT0H-
FORD, J.-These suits were originally commenced in
the Supreme Court of the State Of New York. Tho
parties plaintiff and defendant to both suits are the
same, except that Edward w. Durham is a party 70
the second suit and Is not party to the first suit.
The suits now In this court either as respects
all OF the defendants in each respects the de-
PENDANTS, the railroad company and Tracy, or one
OF them in each by virtue Of certain proceedings fer
the removal Of the same from the State court into
this court taken In the State court behalf OF the
railroad company and Tracy. The plaintiff,
insisting that II the suits in this court at all they
are here only as respects the company and Tracy,
now moves to remand the suits to the state court.
The complaint in each suit states that It u
stockholders of the Chicago, Rock Island and Pacific
Railroad Company who may elect to avail themselves
The prayer Of the complaint in the first suit
is for q judgment that the defendants be
enjoined and restrained from making any such CON
tract, and from creating any such liability, and from
using any OF the moneys Of the company for su0h
purpose or In execution OF any contract to build
capital stock of the company and from using the
proceeds OF any OF the new forty-nine thousand
until the stockholders OF the company shall at taer
next annual meeting In June 1858, or at any specaa
meeting to be called for that purpose, have passed
shares and upon the disposition to be made thereof or
OF the proceeds thereof and in regard to the proposed
extension OF the railroad. The complaint also prays
that the defendants may during the pendency OF the
action be enoined and restrained above provided
and that receiver OF the proceeds Of the $1,000 new
shares may be appointed on this complaint and
on afdavits accompanying It, an er pdrte injunction
was issued by the State court on the 9th OF january
1885, enioning and restraining the defendants until
the further order OF the court above prayed for.
The complaint in the second suit reasserts the al
legations Of the complaint In the first suit ana
brings In as an additional defendant Dunhams
Who Is the treasurer OF the company, but not
one Of te o e prayer G ar s9 in S
frts complaint, and further that the defendants %
enjoined aud restrained from removing any OF the
books OF the company or Of the directors OF the
Executive Committee beyond the Jurisdiction Of
the court, and from preventing the plaintiff and
other stockholders from obtaining an examination
and inspection thereof, and from interfering
with them in making such examination and
inspection, and from removing the proceeds Of
the 900 shares Of STOCK any other property
or proceeds thereof beyond the jurisdiction OF the
fer any shares Of the STOCK Of the company whether
Ct The original o. 900 shares, or Of the $4,000 addi
tonal shares until transfer OF all the shares whether
be made without distinction and from closing tho
ofce or place OF business OF the corporation in the
restrained during the pendency OF the action On
the complaints In the two SUITS and on aflidavs ON
sued by the State court on the It'll Of January, 1885,
enjoiptng and restraining the defendants until the
further order OF the court as so prayed for in the
complaint In the second suit. 1t Is provided by the
act OF July ~ 1885, that any Injunction granted BY
the State court before the removal Of the cause
against the defendant applyin for Its removal shall
continue In force until modified or dissolved by the
United States court into which the cause shall be re-
moved. A motion is now made TO this court on tho
aside the said Injunction.
No order BY the State court for the removal Of
the cause iB necessary The right Of the defendants
to removal is not dependent on the quee.
ton whether the State court does or does not
pendent the refusal Of the State court In proper
case to make such an order would make It tmposa-
BY carrying Sr YIN suit through S State sad
then carrying II from the highest state tribunal -
the Supreme Court OF the United states. under te4
twenty-hfth section OF the act OF 1889. dcfendAne
Is not, however, where State court Is Improperly
proceeding in cause In violation Of the twelfth seq
mode @ Of w relief lief where the s right to remove soy
cause is complete the power Of the state
sna the @ mot oSsed to follow S ne
cause further in any State court either OF original or
appellate Jurisdiction. tKanouse w. Martin, How
removal then, whether the State court makes an
order of removal or not, he can secure and perfect
time copies OF the proper papers and his appearance
and special bail II necessary. When that is done
tions made the purpose Of showing that these
causes are removed into this court under the act of
l7se, and are removed wholly and not par
parties thereto, the only parties thereto being those
who are the real parties-namely, the plaintiff ana
the c0mpany--and that they removed, although
the order OF the State court In each states thae
the cause Is removed as against the company ana
Tracy In pursuance Of the act OF 1906 and tnat sncn
order Is granted under and pursuant TO the lass
named act e. I'll. ~ HNg j.
These cases having been thus removed into this
court under the act OF 1859, and being properly In
this court under that act II becomes unnecessary 70
consider any OF the questions discussed by counsel -
10 removals OF the under the acts Of 1896 ana
1857. The motion to remand the causes is denied.
Where case Is removed under the act Of 1850 any
Injunction issued before Ia removal tps0 IuctO FALLS
for the reason that the twelfth section OF the act
While II s careful TO preserve the lien OF an attach
ment Issued before the removal In certain does
intended TO preserve the lien Of an attachment, and
also continue in force an injunction, It has so ex-
pressly declared, as In the acts OF 1865 and 1861.
(McLeod vs.. Duncan, Mclean 3&2.l The motion 70
dissolve the injunction was therefore unnecessary,
a. the injuactions are longer In force. The mo-
ti0n Is therefore denied. +lf u.H l
J. X. Porter and J. II. Burrill for the plaintiff.
c. 0'Conor and c. Tracy for the defendant.