The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1893-04-20
THE CASE is TRANSFERRED
Federal Court Will Wrestle with the
Plea for a Monon Receivership.
Preliminary Motions 0yerruled-Judge Bar
thOlomew's Decision-AntiSeining Law
Sustained-Cours Miscellany.

The attorneys in the Monon receivership
case appeared In Room of the Superior
Court and submitted argument upon the
petition of the defendants. Thomas and
Brice, to remove the cause to the federal
court.
Before argument was had upon the Pc
tition for removal. attorneys Hatch and
Trissal filed motion asking that they be
granted judgment against the defendants
upon default. The motion alleged that
summons had been served upon defendants
and they appeared TO the action and a rule
to answer was taken against them but
since that time they have neither answered
nor demurred to the complaint, for which
reason they asked judgment against the de-
fendants and that all the allegations of the
complaint not requiring proof be taken as
confessed. They also filed motion to
strike from the files and to reject the petit
tions for removal for the following reasons:
First-That said parties have no standing in
this court right to he heard because they have
not appeared or submitted to it's Jurisdiction.
SecOnd-That they were named In the CON-
plant hereinaand made parties thereto as de
facto officers OF the Louisville New Albany "
Chicago Railway Company. and as such required
to answer as TO certain acts OF INSTRUMENTATION
of the affairs of said corporation. but have not
appeared or answered as TO such charges, and
have no right to petition or be heard In their
capacity as individuals
Third-That said petitions are insufficient in
both form and substance.
Fourth-That said petitions were not presented
Fifth--Ihat said cause is not removable. and
the court to which 1t Is proposed To remove 1t
would not have Jurisdiction or either the parties
or subject matter.
sixth-Becanse said petitions manifestly
sham. and frivolous, and only designed 10 delay
a hearing and determination of this cause.
seventh-Because neither the petition nor bond
presented are sufficient.
Eighth-Because said petitioners and each
OF them joint tort feasors with defendant
company. and, as such, do not present several
controversy within the meaning of the act of
Congress authorizing the removal of causes to
the federal court.
The court overruled both motions and
then heard argument BY the parties upon
the petitions for removal
The petitions were granted and the cause
removed. The opinion of Judge Barth0lo-
NEW was as follows:
OF course, II had authority to examine into
these matters that the federal court must deter
mine, am free to say that outside Of the petit
ton itself do not think the Circuit Court OF
the United States has jurisdiction. But that Is
not question can determine. ] cannot deter
mine the jurisdiction Of the Circuit Court in this
case. 1t must determine it for itself. Under the
authorities am not allowed TO pass on that
question.
/ am satisfied In my own mind that there
be no complete adjudication OF the questions in
the complaint and In the petitions between the
parties seeking to remove this case and the
plaintiff. but have no Jurisdiction to pass upon
those questions The moment this petition is
tiled | mnst look at the form OF the
bond, and If IL is sufficient In form.
and the sureties are sufficient. 1t is bet
ter for all parties that it should be certi-
tied. The bond provides that at the
next session of the federal court you may
present the question there. That is tomorrow
morning. or course, If 1t has adjourned for
few days at the next sitting. which isthe next
session Looking at il as do, the bond being
sufficient in form, and question made as 10
the sureties, think am bound 10 certify the
case.
AS to the controversy between the parties
there are questions here that cannot he detcr-
mined; for instance, the constitutiOnality OF the
state law. 1 do not think the United States
Court has any jursdictieh or that matter Mt all,
and 1t is, perhaps just as vital as between
Thomas and Brice and the plaintiff as IL is be-
tween the road and the plaintiff This petition
alleges a citizenship in Indiana OF the New Al
bany road: IL alleges the nonresdence ot tie de-
PENDANTS, Brice and Thomas. 1 am confined in
my passing on the petition TO remove TO just
those facts. 1 cannot 10 hey ond them cannot
say whether the United States Court he's any
jurisdiction in the matter at all. That is lett
with the United states Court OF COURSE, IL
could determine that matter. that would be an
other question. will enter the order Of removal
and apDrOye the bond.