US SUPREME COURT DECISIONS

When this case was reached, it was dismissed under Rule 10 because the record was not printed, but, upon a representation that the parties had stipulated under Rule 32 that it should not be printed, the court vacated the order and permitted the case to be restored to the docket on payment of costs and printing the record. chanrobles.com-red

Page 148 U. S. 143

Under the Act of March 3, 1875, 18 Stat. 470, c. 137, a cause could not be removed from a state court unless the application was made before or at the term at which it could first be tried.

A cause could be removed on the ground of local prejudice, under Rev.Stat. § 639, sub-div. 3, only where all the parties to the suit on one side were citizens of a different State from those on the other.

In a suit by an assignee under an assignment for the benefit of creditors to disencumber a fund in his possession of alleged liens in favor of several different creditors, the fact that each defendant had a separate defense did not create a separable controversy as to each.

The removal acts do not contemplate that a party may experiment on his case in the state court, and, upon an adverse decision, then transfer it to the federal court.

In the call of the docket, this case was reached on the 17th of October, 1892, and was then dismissed pursuant to the tenth rule, on the ground that the record was not printed. Thereupon, on the 19th of December, 1892, the following motion was submitted on behalf of the appellant, entitled in the cause:

"Now comes Max Rosenthal, appellant, by George Hoadly, his attorney, and moves the court to set aside the order made herein on Monday, October 17th, 1892, dismissing this cause under the tenth rule 'on the ground that the record was not printed' for the following reasons, to-wit: (1) that this is an appeal under Section 5 of the Act of March 3d, 1875, and is governed by Rule 32 of this court; (2) that Section 4 of Rule 32 reads as follows:"

"As soon as such a case is docketed and advanced, the record shall be printed, unless the parties stipulate to the contrary, and file their stipulation with the Clerk;"

"(3) That on November 26th, 1889, appellant filed a stipulation signed by counsel for appellee and appellant, 'agreeing that the record need not be printed,' and in the agreed statement of what the record contains, on file in this court and printed with appellant's brief, it is therein again stipulated by both parties that 'the record need not he printed;' (4) That the agreed statement of what the record contains, embodied in appellant's brief, contains everything that could in any wise bear on the question now before this court. "

Page 148 U. S. 144

"Yet, if your Honors construe Section 4 of Rule 32 as requiring the record to be printed, or if your Honors desire it printed, appellant will gladly have it done."

"Wherefore appellant prays your Honors to set aside your said order and reinstate this cause upon the docket, subject to such conditions as to printing the record as your Honors may consider proper."

"Wherefore appellant prays your Honors to sustain his said motion."

On the 3d of the following January, the court ordered the decree of dismissal to be vacated on payment of costs and printing of record, the case to be submitted on printed briefs on or before February 3d next. The case being submitted, the court, in delivering its opinion, made the following statement of the case:

On August 3, 1878, the Mastin Bank of Kansas City failed, and also executed a deed of general assignment to Kersey Coates for the benefit of all creditors. Coates accepted and administered the trust. At the time of the failure, the Mastin Bank had on deposit in the Metropolitan Bank of New York a large sum -- $50,000 and over -- that bank being its New York correspondent. It had, prior to August 3 and in the regular course of business, drawn and sold drafts on the Metropolitan Bank to different parties. One of the parties holding such drafts was Rosenthal, the appellant. He brought suit in New York City to secure payment from the Metropolitan Bank out of the funds in its hands, but the decision of MR. JUSTICE BLATCHFORD, then judge of the Circuit Court of the United States for the Southern District of New York, into which court the case had been removed, was adverse to his right to appropriate any portion of that fund to the payment of his draft. Rosenthal v. Mastin Bank, 17 Blatchford 318. It would seem from the opinion that the case proceeded no further than to sustain a demurrer to the bill, with leave to the plaintiff to move on notice, etc., for an amendment. What orders, if any, were entered thereafter in that case are not disclosed by this record. chanrobles.com-red

Page 148 U. S. 145

On June 23, 1881, Coates, as assignee of the Mastin Bank, filed in the Circuit Court of Jackson County, Missouri, a petition in which he set forth the failure of the bank, the assignment, his acceptance of the trust, the amount of the deposit in the Metropolitan Bank to the credit of the Mastin Bank at the time of the failure, which deposit had subsequently passed into his hands, the fact that various drafts had been drawn by the latter on the former bank prior to the failure, which drafts were outstanding and unpaid, and that the holders of these drafts claimed the right to have that fund appropriated specially to the payment of their drafts. The holders of the drafts were made parties defendant, and the prayer was substantially that their rights in this fund be determined, to which petition Rosenthal, among other defendants, answered. He admitted the charge made in the petition that a decree adverse to his claim of payment out of that fund had been rendered in the Circuit Court of the United States for the Southern District of New York, but nevertheless claimed the benefit of a different line of decisions obtaining at that time in the trial courts of Missouri. This case came on regularly for hearing in the state trial court, and a decree was there entered directing Coates, the assignee, to pay all the other holders of drafts in full out of that fund, it being conceded to be sufficient in amount, but denying Rosenthal any right therein, by reason of the prior adjudication in New York city. From such decree Coates and Rosenthal both appealed; Coates, however, gave no supersedeas bond. When the case reached the supreme court, the question involved having been recently theretofore presented in another case and decided adversely to the right of the holders of these drafts to payment out of such fund, that court simply entered an order reversing the decree of the circuit court and remanding the case for further proceedings. No special notice seems to have been taken of the fact that the decree of the trial court was adverse to Rosenthal, and, in accordance with the conclusions of the supreme court, should have been affirmed. When the case returned to the circuit court, and before it was reached for further hearing, Coates had paid all the other holders of chanrobles.com-red

Page 148 U. S. 146

drafts. Thereupon Rosenthal filed a petition for removal to the Circuit Court of the United States for the Western District of Missouri, he being a citizen of New York and Coates a citizen of Missouri. This petition for removal was filed on February 10, 1885. The record having been transmitted to the federal court, a motion was made to remand, and, on October 25, 1886, it was sustained, and from this order remanding the case to the state court Rosenthal has appealed to this Court.