Year: 1871

Xlsk, Jr., and the Union Pacinc Railway


Company.


IN the United States Circuit Court yesterday Judge
Biatchford rendered q decision upon the motion
argued before him last Saturday in the OF Fisk
1r., va The Union Pacific Railway Company and
Others II was motion on the part Of the defend
ant to take from the files OF the court the bill In
equity fled IN the suit by the plaintfr. for the rea
sons which win be found fully set forth in the
decision OF Judge Blatchford. which we give In full
IL Is In the following terms:-


DECISION.


As to the motion to take from the files the bin In
equity because one DAVIS Is named as party de-
fendant therein who Is not a party TO the action
commenced in the State court and removed TO this
court" TINS motion must be granted In every as
pect OF the case. IL the entire suit, as to all the de-
PENDANTS named as such IN the original summons in
the State court, was removed into this
court, IN August, 1885, IL was not SO
removed as to Davis, because he was not
summons nor does MS ma ne appear as that OF de.
fendant In the SUIT In any OF the papers unt the 80
SeiSnaant until such @ defendant petitions ine state
court for the removal Of the cause then this suit is
mot removed as to DAVIS, Tor the reason that he
never has petitloned for such removal AS TO the
motion TO take the declaration from the fes
ION the ground that 1t does not include
it purports TO commence all the persons
who are defendants to the original action, and
because IL does not conform TO the form OF the ac
hon In the State courLn This motion is denied.
The allegations contained in the declaration are In
BuDSLlllce contained III tue original cOmpk8lnt III
She State court and the relief asked in the declara
ton on such allegations Is relief which 1t would
have been proper for The State court to grant In the
suit on such allegations against such of
the defendants as should have been found
10 be liable thereon. Only such defendants
sought 10 be made liable on such
allegations are made defendants in such declara-
hon. On the allegations IN the declaration the
paIntn asks for such relief as Is properly grant
able IA thus court only in suit at law. AS TO the
motion, "that the plaintin be ordered TO elect
whether he Will proceed at law or IN equity by de-
claration or bill TO discontinue all other proceedings
than those which he shall elect, and TO
continue one suit or action only against
the defendants originally sued by hun In
the State court" Tnls motion Is denied In addl-
non 10 proceeding with his suit at law in this
by such declaration, he may proceed In this court
also the same time by bill equity for what Is
properly equitable relief founded on allegations 10
be contained such bill, in substance the same
allegations contained III the original complaint in
the State court As TO the motion "that the order
20 answer said bill and rule to Plead to said de-
claration be vacated.u The motion that the order
70 answer the bill be vacated is granted. The mo-
ton that the rule TO plead TO the declaration be va
Gated Is denied. and the defendants are granted
thirty days from the service OF copy OF the order
be entered herein to plead demur TO SAID decla-
ration An order viii be entered in conformity with
the foregoing decisions.


f. w. Stonghton and u. D. Field for the plaintiff;
J. Emott for the defendants.