The New York herald., 1871-03-19
THE ERIE RAILWAY LITIGATION.
Mr.. James III. COIeman,s Re-
ceivership.
Fisk, Jr., and the Union Pacific
Railway Company.

The case OF James Fisk, Jr.. VS.. The Union Pacific
Railway Company came up yesterday in me United
states "a rcut Court before Judge Blachiord, tht
motion OF Mr.. Enott with whom was Mr.. S. J. I'll
den counsel Tor the deiendants TO take from the lt
a biz in equity ana the declaration. The com
plainant Fisk. observed Mr. Emott, commenced
SUIT III the Supreme Court Of the State OF New York
on the 3st OF July, 1885, against all the
persons named In the complaint, ana Thai
cause removed by petition 10 the
United States Circuit subsequently. He had mol
heard from the other side any question as to that
removal He counse) stated, In view OF the opinion
OF Judge Nelson ana Of his Honor, that that cause
came into this Court by the presentation OF reti-
ton as late as the Sd OF August ls6s The complain
ant FISK had commenced IN This Court suit
against all the persons who were described as de-
PENDANTS his suit i'll State courts with the ex-
| cepion OF George Ashman, who was understood 10
be dead. That suit IN the State courts was an
equitable action. His Honor had had the
case before him and had stated his opinion
IN the matter. That equitable action asked that Fisk
should be made the holder OF 10000 shares. The
matter was finally removed TO the United States
Circuit Court. The act OF 1868 declared that copies
| OF ali papers, pleadinps, depostions and testimony
might be entered In this conrt, and that the suit
| might proceed IN this court as IL brought upon the
original suii. Under that statute, as well as OF July
| 1866, the application might be made and the
SUIT removed ac any time before trial,
| but not after issue joined; and copies Of
| the peaangs might be used IN this
court with the same effect as the originals. The
act OF 1866 was to enable portion OF the defend
ants TO bring suit in this court aud leave out others
| who had not agreed to the bringing OF The SUIT In
fact the Court should be enabled to make up the
| 10 naga N as
the right to the at any stage Of pro-
ceedgs: but 1t must come III the shape IN which 1t
was brought in the court below. The meaning OF
! the act was that The should come in here on
| Tie pieadingS which had been puu ln in the State
| court, II there nad been pleading The cniy point
necessary Tor him 20 make at present that lt
| was the SUIT which was removed from the State
court; the suit IN the shape II was brought in the
state court with ali It's parties aud no more, and
with All the incidents attached 10 IT, was the SUIT
| tnat was now before This court; Where party had
placed himself the record, ana tnat suit was
moved here That was the identical SUIT be
tore tnis court, unless the party got leave
The suit IN this case was A against al
the parties named III the bii in equity, with the sia
party to sui, until long alter it's removal from
the stale court into this court. A suppiemg neal
complaint was filed, and Davis was made d party 10
| II long after The removal or the suit. He was not
an original party TO the original suit. He supposed
tna that bill n equity VITA DAVIS out OF II, was the
thought tnat anything else was a bastard
A suit might have been entered TOR legal
| gone on the egulsy side and on the law side, Tor
! which they might have asked bar aid not Tne
SUIT had assumed oednite, formal shape IL was
the equity SIDE, with sl iluncuon In II. 1t came
INTO tnis court II lts original shape II could not,
therefsre. oe changed and Il must go on as II CON-
ihencea 70 CHS G uit upon the original papers. II
the plaintiff had commenced the suit In this court
ne would ne q bill and get suppc mas
| 10 each OF the defendants to answer,
and after seeking this equitable relief he could not
be allowed TO create q new branch OF tins litigation
On an action for damages that he brought CLAIMING
iendants for refusing him The STOCK which IN the
equity lie claims iney should have issued TO him.
There was incompatibilty between those two
actions. These two suils could go on together.
The only complaint that he had made TO the
not be made party to the suit. He could only be
| ing He did nos belong to tie sui which could
ony proceed aseinst all the parties, and against
papers untii after the papers we're removed into
this court, ana Judge Nelson held that 1t vas not
put the referred TO than into this court ana that
nere was 10 power IL the State court after that to
change the form of proceeding.
MIR. David Dudley tleld opposed the motion, and
read an affidavit Of John ". Sterling 10 The erect
that James W. DAVIS was maze IarIy to The SUIT
Credit Mobilier made 10 remove the suit INTO
tins court. HIS learned friends position his
that the moment one delcldant out OF tnirty-one
petitioneo to remove the case tle whole case muse
stop, because they could not oe served with The
coad nop N be e sTyeS 5se ers eSq IN and snch they
! case the court would have no jurisdiction. That
would he denial of all justice, ana 1t would lie in
possible lof Congress 10 enact such law. Tie suit
was brouRht against tnirty-one deiendants six OF
them had appeared in the state court, and the
others HAD not been served Five oI the SIX Pc
tltloned 10 remove the into this lrt and 1t
was so removed. The question was cebated IN the
state court whether IL was proper removal, auu If
removed at all when the petition was died. Mr.
tracy made an adldavt that tie petition was filed
IN August II should b5 held that the case did not
come mere as TO the other defendants unil they ap-
la tbaf
the cause was Ii this court tines ala not serve him.
Ihey could not prosecute Days wltaou the other
rartes, because he could turn round and say that
the SUIT was not against him. The paintif had fled
declaration in oTaer to cover legal cause of
action. lt was filed on this theory IN the state
court, If you entitled TO relief equitable or legal
on the facts of the complaint you.ge t, whether ii
shares was written on the books OF the company
and renamed there TO this day. but the treasurer
10 receive tAe money Oh me ground that nlty-Hve
per cent was not the Whole amount paid oy the
aDeenosrs he ss ne to pant Was "a
equity, and II not a stockholder then the Court
would see Thar he had regal lgbt to sue or dam
ages. Congress could not take away from man
his legal rights; it could put him into the federal
courts, there to ascertain what MS legal rights were.
After some riel remarks rom Nh. f. w. Slough
ton on tue law Of the case Mr.. samuel j. Tden re-
lerred 10 Judge Nelson's opinion, ia which the
learned Judge decided that rhe cause in question
shouts be removed from the State TO tne federal
court and SAID that opinion clear that
the suit. In an IT'S entirety, nd with al matters an.
pertaining thereto did into the Jurisalction OF
TINS court at he time stared. lie stood on the legal
theory OF THIS court when .he saId that The whole
case came hefe from the state COURT and came
Wheiher the party petitioned or not. Judge Nelson
sad That II there were outside partes aud if they
wero deemed material IN The matter, they should be
regarded as subordinate TO the principal litigation.
Alter some urther argument the Court took the
papers, aud reserved his decision.
The Erie Railway and the English S.ociS-
holders.
The case or James Fisk, Jr., the Eric Railway
Company and J. ID. White vs.. Heath and Raphael
next argued. This case had been removed
from the State to the United States Courts.
Under an order Of the state Courts Mr..
James IL. Coleman had been appointed receiver,