San Antonio daily light. [volume] (San Antonio, Tex.) 1886-1907, 1890-11-21
VICTORIOUS.
The Arkansas Pass Receivership
Remains i'm the San Antonio

The Arkansas Pass Receivership
Remains i'm the San Antonio
Courts.
The decisions of Judges Pardee and
Maxey on the motion of Johnson &
Hansen to have the jurisdiction of the
receivership of the Arkansas Pass rail-
way remain with Judge Kings court,
were rendered yesterday afternoon,
and are given below:
Judge Pardee: The Farmers Loan
and Trust company was not made q
party by the plaintiffs. 1t has not
been called in warranty. shows no
liability on its part to protect the de-
PENDANT. 1t makes no claim to the
revenues of the railway property nor
to its possession. Its sole interest III
the case is to assert its lien and the
priority thereof. 1t has no interest
In defeating plaintiffs demands
further than to secure priori-
ty for itself. / am therefore
of the opinion that the Far
mers' Loan and Trust company,
intervenor in this cause, is mainly
an intervening plaintiff and only in
very limited way can be considered
sci are referred on this point to
Noble vs.. Myers, 76 Tex. $50. In the
present case ! seriously doubt
whether the farmers Loan and
Trust company can be considered q
defendant at all within the meaning
of the third clause of the second Sec
ton of the act of 1SSS--25 Statutes at
Large, 434.
However this may be, am salts
fled that in the present cause sought
to be removed there is no controversy
wholly between citizens of different
states which can be fully determined
as between them. To the plaintiffs
suit the defendant railway company
is necessary party.
The plaintiffs action is in the ma
ture of creditors bill and Is brought
to establish their rights against the
railway company as well as against
all lien holders and other creditors.
A determination of their rights as
against the Farmers Loan and Trust
company is only small part of their
case.
Separate defences do not create
separate controversies within the
meaning of the removal act. For adj
Indicated cases directly in point see
Fidelity Co. VS. Huntington, III u. 5.
$50. In Graves vs.. Corbin, 1872 u. s.,
571, cases settling the proposition are
collected and reviewed.
The motion to remand is granted.
Judge Maxey:-I concur fully in
the views expressed by Judge Pardee
in ordering the cause to be remanded
to the state court. For two reasons
the suit is not removable under the
act of 1888. First: The Farmers
Loan and Trust company, which
tude of an intervening plaintiff. 1t
is the actor. the complaining party,
the plaintiff, as to the cause of action
which it seeks to enforce, and CAN
not be held to be within the meaning
of the act defendant who alone
is accorded the right to remove
by the terms of law. Second:
If in legal contemplation the
Trust company could be construed, or
held to be, defendant, it would still
be precluded from removing the
cause on the ground that there is not
in the suit q controversy wholly be-
tween citizens of different states,
which could be fully determined
as between them. To the full
and final determination of the
controversy, Johnson and Hansen
and the intervenor, the Farmers Loan
and Trust company, the San Antonio
and Arkansas Pass Railway company
is not only proper but necessary
party. The debts claimed against
the railway company by both John
son and Hansen and the Trust com-
pany, are the principal thing and the
liens but an incident, and in order to
adjudge the existence of the dates
and establish the validity of the liens,
the debtors presence before the
court is indispensable. But when the
debtor makes its appearance, as the
railway company herein did upon the
original Institution of the suit against
it, we have directly presented q con-
trOversy not wholly between citizens
of different states, which could be
fully determined as between them.
Upon the hypothesis that the Trust
company could be considered as a de-
PENDANT, the controversy is one be-
tween citizen of Texas as plaintiff
and citizen of Texas aud q citizen of
New York as defendants. Hence it
follows that the suit is not removable
under the third clause of section | of
the statute invoked by the interven-
Ing Trust company