U.S. Supreme Court
Fashnacht v. Frank, 90 U.S. 23 Wall. 416 416 (1874)
Fashnacht v. Frank
90 U.S. (23 Wall.) 416
Where in a suit pending before it a state court dissolves an injunction (previously granted by it on an allegation by the mortgagor, that the mortgagee had agreed to give him further time) against proceeding to sell mortgaged premises, under a foreclosure already had, and after such chanroblesvirtualawlibrary
dissolution -- the effect of which is, of course, to leave in force a final decree of sale -- an alien defendant petitions for a removal into the circuit court under the Act of July 27, 1866, "for the removal of causes in certain cases from state courts," and the state court refuses to grant that petition, the defendant not excepting, and the case is afterwards taken to the supreme court on an appeal from the decree dissolving the injunction, no jurisdiction exists here to review the judgment of the supreme court under section 709 of the Revised Statutes, and on the ground than a right, title, privilege, or immunity has been claimed under a statute of the United States, and that a decision of the highest court of the state where a decision could he had has been against it. The refusal of the state court to grant a removal under the act of Congress not having been excepted to, and that matter not having been involved in what was before the supreme court, its judgment cannot be held to have embraced it, nor indeed anything but the matter of the dissolution of the injunction, a matter which involved no federal question.
The case was thus:
Frank, a citizen of New Orleans, having a mortgage on property in New Orleans of Fashnacht, a citizen of the Republic of Switzerland, obtained an order in the Fifth District Court for the Parish of New Orleans for the seizure and sale of it.
Fashnacht thereupon procured from the same court an injunction on the sheriff and on Frank restraining the execution of the order, alleging in his petition for the injunction and as a ground for it that at the time when the mortgage was executed and as an inducement to the execution, Frank, the mortgagee, had granted to him time for paying the bond which the mortgage was given to secure, although that fact did not appear as a matter of mention in the contract.
The case came up January 16, 1874, on the question of a permanent injunction. Testimony was taken, witnesses examined, letters read &c., and the court on that day dissolved the injunction, with damages.
On the 20th of the same month, a motion for a new trial was made and refused.
Fashnacht, the defendant, thereupon, on the 23d of January -- that chanroblesvirtualawlibrary
is to say, three days after the refusal to allow him a trial -- filed a petition to remove his case into the circuit court of the United States, under the Act of July 27th, 1866, "for the removal of causes in certain cases from state courts," an act which enacts that
"In any suit in any state court against an alien, if the suit so far as relates to the alien defendant is one in which there can be a final determination of the controversy so far as respects him without the presence of the other defendants as parties in the cause, then the alien defendant may at any time before the trial or final hearing of the case, file a petition for the removal of the cause, as respects him, into the next circuit court of the United States,"
The petition of Fashnacht for the removal stated that the suit could be thus determined.
The court refused to allow the transfer. It said:
"The order is refused, for the reason that the case was tried and determined by this Court after an appearance and pleading of the defendant therein. The order should have been asked for in limine, and the case having been finally determined, as far as this court had jurisdiction, the parties must abide its decision, unless they see proper to appeal therefrom."
Thereupon, on the 31st of January, Fashnacht appealed to the Supreme Court of Louisiana from the decree of the Fifth District Court of the Parish of New Orleans dissolving the injunction, but from nothing else.
The supreme court affirmed the decree of the court below.
From this judgment of affirmance the present writ of error was taken by Fashnacht under the assumption that the case came within section 709 of the Revised Statutes, which gives such writ to bring here for reexamination a final judgment or decree in the highest court of a state in which a decision in the suit could be had in cases where any title, right, privilege, or immunity is claimed under any statute of the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed under such statute. chanroblesvirtualawlibrary