The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-09-01
THEY WANT It REMOVED
B. g. M. 90. Ask That the Dayton
Case Be Sent to q. s. Court.
PETITION ALLEGES FRAUD
Sets Up That A. p. Heinze Has No
Interest Whatever in the Subject
Matter OF the Controversy.
History of the Action.

The Boston & Montana Mining com
pany. one of the defendants in the Day
ton mining suit, brought in the district
court by F. Aug. Heinz and Arthur
p. Heinze. yesterday petitioned the
| court to have the case removed for trial
TO the United States court. and alleges
fraud and attempt on the part of the
plaintiff to get around a decision of the
United States court.
The company alleges that the contro-
versy is wholly between citizens Of diff
ferent states and that +. A. Heinze
is the sole plaintiff interested in the
case. Arthur T.. HeinZe, who is Joined
as plaintiff and who claims TO be a
citizen of the state of New York, has
no interest whatever in the subject mat
ter of the controversy and was Joined
in the action falsely and f~raudulently
for the purpose of defeating the defend
ants right to remove the case into the
United States court, and the allega-
lions in the complaint as to his title n
interest in the property were made for
the same purpose. II any interest was
transferred to hin II was done in fraud
and against the rights of the defendant.
On the 26th of last May, f. A. Heinze
brought another suit in the district
court based upon the same facts as In
this case and the two causes are identi-
cal, but +. A. Heinze appeared as sole
plaintiff. The former action was based
upon pretended assignments from How
ard H. Zenor, David n. Upton and Pat
rick A. LaTgey of their interests in and
to an agreement and upon a pretended
deed from one Dennis Farrell. +. Aug.
Heinze alleged in that suit that by vir-
tue of such assignments he became en-
titled TO a deed from Dennis Farrell
for the property in question and there
after, in April, Farrell did deliver a
deed TO HeinZe for a half interest in the
Dayton lode and Heinze filed the pre-
tended deed for record. That deed is
the only one on record from Farrell af-
fecting that portion of the Dayton lode,
except the other deed by which Farrell
conveyed the property to the Montana
Copper company. There Is no deed on
record conveying n interest to Ar
thur Z. Heinze.
After the first suit had been brought
ii was transferred to the United States
court on petition of the defendants, and
thereafter, Aug. p. Heinze filed a
motion to remand the case to the dis
trict court, but the motion 10 remand
was overruled and denied by Judge Nc
Hatton, attorney for the plaintiff, had
the slit dismissed, and on the same
day. Aug. II, brought the latter ac-
ton in the district court for +. A.
and A. p. Heinze.
The defendant and petitioner there
fore AYERS that after the first case had
been transferred to the United States
court, f. Aug. Heinze made every eff
fort possible to have il remanded to the
district court, and failing he dismissed
the action and Joined Arthur p. Heinze
with him as plaintiff in the action false
ly n fraudulently for the purpose of
defeating the just right Of the de-
fendant 10 remove II TO the United
States court. He Is not a bona hde par
ty in interest in the case, but has join
ed in collusively and In fraud Of the
rights of the defendant.
The controversy in the action, which
is wholly between the defendant and
f. Aug. Heinze, Is of the following ma
ture:
The defendant is the legal owner and
Is In possession OF that portion of the
Dayton lode mentioned in the complaint
I'm which the plaintiff claims some
interest by virtue of the deed from Far
rell and also as successor In interest Of
Zenor and Largely. The plaintiff is at
tempting TO declare the title OF defend
ant null and void. The petitioner al
leges that the Boston & Montana conn
pany of Montana is not interested in
the controversy nor In the property, but
1t belongs wholly 10 the Boston & Mon
tana Of New York. The pc
~ - hAA-N NAANAN AZ "a
the suit another controversy, which is
wholly between citizens of different
| states, as follows:
The petitioner, the New York com
pany, is the legal owner OF the Dayton
lode, and has been since II received a
deed for il, and also OF mining ores
for which the plaintiff seeks to recover
800, 600 damages. The plaintiffs COM
plant shows hat in April, 1898, the
premises were conveyed by the Boston
x Montana Consolidated Copper & Sill
Yer Mining company of Montana to the
defendant. but the plaintiffs have
fraudulently Joined the Montana cor
poration as defendant In order TO defeat
the right of removal to the United
States court. A bond on removal and a
demurrer to the complaint were also fl
ed. The demurrer alleges a misjoinder OF
parties; that three causes of action have
been improperly united: that the COM
plant is ambiguous and uncertain. An
answer to the petition for a survey Of
the Dayton lode was also made by the
defendant. Il denies that the plaintiffs
have any interest in the property or
that they nave any right to an examin-
alton and survey Of IT. 1t is also de
MES that the veins worked on by the
defendants have their apices In the
Dayton lode.