The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-03-30
Appeal from the Fourth District Court Of New

on the 18th Of April, 1868, to be transported oy
the latter TO jackson. the shpmea. 81 me soodsn
tination. 1t also appears that the freight money
was paid by plaintiff 10 defendants ct Tangipahoa,
few miles beyond the point Of shipment.
The defense Is that of or near Tangipshoa station
the progress Of the merchandise was arrested BY
Grierson's raid, and that the same. for security
from devastation by federal troops, Was stopped
at said station and by the fmpossibility OF pro.
ceeding further on she road In consequence OF
road that while said merchandise was then and
there at Tapgipshoa, the same was destroyed by
Q military force acting under orders OF Col. Do
monteil. of the Confederate army, and lost by 2
Uis major by circumstances beyond the power OF
the defendants to prevent. and without any fault
on their part. .,ra
There was Judgment for plaintiff for the sum Of
1924 80 in gold or its equivalent In United Ststes
treasury notes, with interest thereon from April
18th. 1868. and defendants appealed.
After reviewing the testimony In the case, the
court decreed that the judgment Of the lower
court would be in all respects affirmed, II regular
in form and for the proper amount OF interest," 80
is admitted BY plaintiff counsel that the rights OF
bis client would be satisfied By Judgment In law
ful money for the sum fixed by the court as the
value Of the property; and as interest 10 DUE not
from the time Of shipment but from Judicial de:
mand, 70 Rob. 1872 1t is ordered and sdjudged
that the judgment appealed from be avoided and
snnulled, and that the plaintiff have Judgment
Against defendant for the sum Of twelve hundred
and seyenty-four dollars and shirty,tnree cents.
February 1, 1866, with costs OF the lower court,
and that the plaintiffs pay the costs Of the appeal
BY ASSOCIATE JUSTICE W. W. HOWE.
No. 1861. G. Roosevelt va. the Adams Elk.
press Company. Appeal from the Third District
Court The plaintiff brought suit against the de-
fendant as express forwarders, and caused them
TO be cited through Alfred Lockwood. The de.
| PENDANTS, appealing by their attorneys, filed
petition for the removal of the for trial into
the xt Circuit Court of the United States to be
held in the eastern district of Louisiana, offering
| security in such amount as the court might re.
| quire, and took rule 10 show cause why the
| case should not be thus removed. The petition
| was verified by Asa 8. Blake, who states In his
affidavit that he il superintendent Of the Adams
that upon The trial Of the rule the plain
| tiff objected to the transfer on the ground
| that the application was not in proper form, IN
this that the authority Of Blake as superintendent
| Of the company does not extend to the power OF
representing the defendants in actions brought
| against them. Upon the or, und that no such au-
thority had been delegated to Blake, the district
Judge denied the application. The defendants, re-
serving their rights upon this point, proceeded to
answer upon their merits, and upon the trial
| judgment wasrendered against them, from which
they have appealed.
The question which we meet at the threshold Of
the is whether the district court erred IN re-
fusing the application for removal. 1t Is urged by
plaintiff that as no appeal was taken from the
judgment on the rule, the question cannot now be
| considered.
The current of decision, however. was In con-
trary direction. An application to remove 10
analogous 10 plea TO the jurisdiction, and when
q removal is ordered the plaintiff would be with
outremeoy against such an order unless by sp-
peal. 1t Is otherwise when the court retains Ju-
risdiction the order Is then an interi0cutory de-
cree, causing no irreparabe injury. and unsp-
pealable, but which may be examined on an ap.
peal by defendant from the final judgment, and
| may then, If erroneous. be corrected. Higgins
VS.. McMicken, N. s., 7l2, M, l76; La. 37S
Proceeding then to examine the action of the
district court in this matter. we are constrained 10
the conclusion that II was erroneous. The defend
ants sverripg themselves to be corporation
created by and under the laws of the State Of
New York. and that all its corporators are citizeni
of other States than Louisiana, had right wher
sued In one of our courts by citizen OF this STATE
to remove the cause into the next Circuit Court o.
the United States. under the 18th secten Of the
| judicial act Of 1889, ! u. s. Stat. 49,
This right is established under the constitutions
provisions respecting the judicial power of thu
United States. and the proceedings OF STATE
court after enormously denying Il are cordn MOI
| judice and nugatory. Gordon vs.. Longest. II
| Peters, 81; Ksnouse vs.. Martin, Is Howard. 1873.
The law prescribes only the presentation of
petition by defendant on his first appearances
setting forth to the satisfaction of the court tn
necessary facts and the Offering OF surety for tn
fling of copies Of process In the next circuit court
1t is the usual and approved practice to have thi
| petition verified by an affidavit; but we are no
! aware of any rule which would make the afidavi
of Blake In this case unauthorized or unavailine
,, The plaintiff did not attempt to show that tn
petition was in any respect untrue; indeed,
seems TO be settled that such an attempt canno
| be permitted. La, 394; IA La. 5l5; Rob-, 81
| The court does not seem to have questioned tn
truth of the petition, and no objection was mad
| to the bond. til
based upon the authority of Fusilier Va. Robin, AZ
, AnD., 81 but that was case where one atempte
{, obtain judgment against an absentee BY citing ?
agent who had no special authority to receive o
tation and 1t was correctly decided that the judf
. | ment must fall for want Of q foundation.
But in this case there ia no question Of sufcier
citation. The plaintiffs petition does not ave
|. agency In any one; copy with citation wa
: served on Lockwood, the only evidence Of who's
|, agency is found in the statement by the sheriff
I, | his return that he knew him to be such lawfl
agent "by interroeating him." The defendant
, then appealed by their attorneys at law. member
of our bar, whose authority Is mot questioned an
: will be presumed. s N. b. 234, Is La, 1853.
Upon thus for the first time appearing they mad
q showing which would seem To have entitled theI
/ to the removal Of the cause to the federal cour
! For the reasons given 1t is ordered and adjudge
!. that the Judgment appealed from be avoided an
4 reversed, and the case remsnded to the distr
4 court with directions 10 accept sufficient sure
4 Tor the removal of the cause to the next Circu
Court of the United States for the District
N
= the case. II is further ordered that the appellt
\ pay the costs of the appeal.
}, BY ASSOCIATE JUSTICE ]. G. TALIAFERRo.
. No. l4s2-Jas. A. Douglass vs.. 8. G. Msnnin
|, Appeal from the Sixth District Court of Ne
r Orleans. Horner & Benedict, for appellee; N
q | Kay Gutenberg for appellant.
The plaintiff sues on promissory note for $40
, The defendant in his answer pleads gener
n denial. Afterwards In @ supplemental answer
n sets up q unconventional demand founded up
% claims against the plaintiff for quantity of b
e last and a large lot of implements used BY stew
~ dores in their business; which ballast and tools
z alleged he left in charge Of the plaintiff 10 q
n | early part of 1861. when it seems the defends
left the city and took up his residence ct Arco
N | and other places near the jackson railroad.
AYERS that upon bis return TO the city in 1865 n
!. plaintiff refused and failed TO deliver to him &c
n tain tools which he enumerates in detail and th
q | plaintiff had sold eleven hundred and fifty tons
" | the ballast entrusted to him without accounting
- | him for the proceeds which he hxes AZ the sum
If six thousand nine hundred dollars. he alIeg
,s that the note sued upon was given through errc
|, and without consideration. He prayed q trial
u jury and Judgment in reconvention for s1627 o.