U.S. Supreme Court
Connell v. Smiley, 156 U.S. 335 (1895)
Connell v. Smiley
Submitted January 22, 1895
Decided March 4, 1895
156 U.S. 335
A party in a cause pending in a state court who petitions for its removal to a federal court, or who consents to its removal, cannot after removal object to it as not asked for in time. chanroblesvirtualawlibrary
This was an action originally brought March 16, 1887, by John A. Smiley, a citizen of Nebraska, against William J. Connell, also a citizen of that state, in the district court of Douglas County, Nebraska, to quiet title to eighty acres of land. The petition alleged that the plaintiff made a deed of the tract in which a proposed corporation was named as grantee, which was deposited in escrow to be delivered when the corporation was fully organized and certain stock issued to plaintiff; that the corporate enterprise was abandoned, but the deed, contrary to intention, and without plaintiff's knowledge or consent, was placed on record; that one Frederick Lay recovered judgment against the corporation, and the land was sold on execution issued thereon, and bid in by Lay's attorneys, one of whom was Connell, and conveyed by the sheriff to them, and by Connell's associate to him; that plaintiff was in ignorance of this until long after; that the corporation had reconveyed, and that Lay had assigned the judgment, and quitclaimed any interest thereunder to him. The specific prayer was that the court might decree
"that said Connell took no interest in said land by reason of said sale upon execution issued on said judgment; that the said sheriff's deeds be set aside, and the title to said land be quieted in plaintiff."
On the 18th of June, 1887, a motion was filed in the cause by W. J. Connell, as attorney for Herbert M. Tenney, which read:
"And now comes Herbert M. Tenney, and hereby represents that he has, and at the time of the commencement of this action did have, an interest in the property in controversy herein, and he therefore asks to be made a party defendant, and so allowed to file an answer herein and defend his said interest."
The record shows on the same day an order in these words:
"On motion and for good cause shown, it is ordered that F. H. Lay be, and he hereby is, made a party defendant in this action, and is allowed to file an answer herein within twenty days."
The answer of defendant Connell was chanroblesvirtualawlibrary
filed July 7, 1887, setting forth, among other things,
"that, prior to commencement of this action, a portion of said premises was conveyed by deed to Herbert M. Tenney and F. H. Lay, who now claim to be the owners of the premises so conveyed."
On the same day, Lay and Tenney, by their attorney, Connell, filed their petition and bond for removal to the Circuit Court of the United States for the District of Nebraska. The petition stated:
"Your petitioners, Frederick H. Lay and Herbert M. Tenney, defendants in the above-entitled suit, respectfully show to the court that at this time, and at the commencement of this action, and for a long time prior thereto, the said Frederick H. Lay was and is a citizen of the State of Colorado, and the said Herbert M. Tenney was and is a citizen of the State of Ohio. Your petitioners further show that the said John A. Smiley, plaintiff, is a citizen of the State of Nebraska, and at the time of the commencement of said suit was a citizen of the State of Nebraska, and further say that the amount in dispute in said action exceeds the sum of $2,000, exclusive of costs, and in fact exceeds the sum of $10,000, exclusive of costs, and that each of said parties own and claim separate and distinct portions of said land."
Attached was the affidavit of Connell
"that he is the attorney for the above-named defendants, Frederick H. Lay and Herbert M. Tenney, and that the facts contained in the foregoing petition are true."
The bond was signed by Lay and Tenney by their attorney, Connell. Thereupon, August 8, 1887, an order for removal was entered which concluded, "[a]nd, by consent of parties, the said cause is removed as to said defendant Connell, as well as to the other defendants." The plaintiff thereupon filed in the circuit court his petition for leave to file an amended and supplemental bill, making Tenney and Lay defendants, which leave was granted, and an amended and supplemental bill filed accordingly against Connell, Tenney, and Lay. This bill averred that, after the filing of the original bill,
"the defendant Connell signed and acknowledged two deeds purporting to convey to each of said defendants Lay and Tenney a portion of your orator's said land, and caused the said deeds to be recorded in
the office of the county clerk of said county. Said deeds bear a date previous to the filing of your orator's said bill."
That thereafter the defendants Tenney and Lay, by their attorney, the defendant Connell, applied to said district court to be admitted as defendants in the suit, and on the 18th of June, 1887, of the May term, were by said court so admitted. It was further alleged that on July 7, 1887, actions of ejectment had been commenced against plaintiff by Lay, Tenney, and Connell severally to obtain possession of portions of the land in dispute.
February 15, 1888, Tenney answered the amended bill of complaint, stating, among other things, that he
"admits that said defendant Connell, by deed to this defendant and to said defendant Lay, conveyed the portions of said land in said bill of complaint described as having been so conveyed, but this defendant denies that said deeds were made after the filing of said bill, but, on the contrary, the defendant charges that said deeds were made, executed, and acknowledged on the day which they bear date."
On the same day, the answer of Connell to the amended bill was filed, and on February 22d, the answer of Lay, containing similar allegations. Replications were filed to these answers, and the cause was subsequently heard, and a decree rendered in favor of the complainant, with costs, it being stated at the foot of the decree:
"To the jurisdiction of the court to render a decree herein the said respondents object, and to which several findings and each thereof, and to which said decree, the said respondents except, and pray an appeal, which is hereby allowed,"
etc. An appeal was subsequently prosecuted to this Court.