San Antonio daily light. [volume] (San Antonio, Tex.) 1886-1907, 1890-10-14
THE OPINION OF JUDGE KING.
The Court Passes Upon the Petition
For The Removal OF the
Receivership of the

ncCeiSeFSnIp VI Tic
S. A. p.
The long looked for opinion of
Judge King, on the petition of the
Farmers Loan and Trust Co. of New
Y ork for the removal of the Arkansas
Pass receivership to the Federal
court, has been delivered. After a
very exhaustive review of the author
tiles, showing the right of the state
court to pass upon the removal, the
court holds it to be its duty, to the
county. to ascertain whether the petit
toner Is one who can exercise the
right of removal, and whether
he presents sufficient cause
of action for such removal Quoting
Chief Justice Chase's opinion that,
"the right of removal is given only to
defendant who has not submitted
himself to that jurisdiction" the court
holds that Gan intervenor against
whom no affirmative relief is asked
by pleadings of the other parties to
the cause, occupies the position OF a
plaintiff. An intervenor stands in
the character of plaintiff before the
court as to. the nature of his title
and the object of his demands, and is
governed in his pleadings by the
rules of practice which apply to plain
tiff in principle demand. The
next question Is the diverse
citizenship of plaintiffs and defend
ants, and if that exists, the removal
cannot be made. The only way by
which petitioners can avoid the d.
verse citizenship of the parties de-
PENDANT is, by contending that there
is a separable controversy which can
be tried without the presence of the
railway company. To entitle party
to removal there must exist in the
suit separate and distinct cause of
action on which separate and dis
dinct suit might properly have been
brought, and complete relief afforded.
The petitioner in this case contends
that its only cause of action is against
Johnson & Hansen and that it is a
separate cause of action from that
asserted by Johnson & Hansen
against the railway company. Both
are claiming liens against the prop
erty of the railway company, and
each claims priority over the other.
Priority cannot be decided without
first determining if either or both
parties hold valid liens, and that can
not be done without the presence of
the railway company, and if the
presence of the railway company is
necessary, then there is no separable
controversy, and consequently there
can be no removal"
"There is another reason why the
cause should not be removed: Suppose
the petitioner instead of intervening
in this cause had brought an origi-
nal suit in the federal court making
all the other parties herein defend
ants, then the result would have
been citizen of New York plaintiff,
sueing two citizens of Texas, and
one citizen of New York defendant.
Consequently, the federal court
would be without jurisdiction, for
all the authorities hold that If any
one of the defendants is of the same
citizenship as the plaintiff, that court
is without jurisdiction"
"For the reasons above given the
petitioners are not entitled to have
this cause removed, and that is the
Judgment of the court"
That this opinion of Judge King
has been very carefully considered
there can be no question. This case
lS peculiarly Que III Wnlcu WHICH uo
would fortify himself against any
possible reversal when the case is
carried to a higher court, as 1t GER
tainly will be. Justice to himself
would compel the delivery of an opin-
ion so clearly in accordance with all
the authorities bearing upon the case
as to render his position as impregna-
BILE as possible. The opinion as de-
livered is clear and cogent. The con-
clusion is a just one, In that it does
not void the rights of Texas citizens
| at the demands of citizens of other