Page images
PDF
EPUB
[blocks in formation]

Barton agt. McKinley...... 283 Hall agt. Hall.. Berlin agt. Mapes.. 288 Heath agt. New York Gold Exchange ) 68

385 492 Hobbs agt. Wetherwax.... Bolles agt. Duff. Bolles agt. Duff..... 504 Houghton agt. Kenyon..

107 Brooklyn Oil Refinery agt. Brown.. 444 Brooklyn Oil Works agt. Brown... 451 Brown agt. Cherry.

352

I
Brown agt. Metropolitan Gas Light
Co...

133 | In the Matter of Bogart & Evang.. 111

In the Matter of James Kingon... 392

In the Matter of Tax Payers of Green 515 C.

[blocks in formation]

Cases Reported.

P.
Rowe agt. Smith....

37 Parrott agt. Knickerbocker Ice Co.. 508 Patterson agt. Bloomer....

280

S.
People agt. Albany & Susquehanna
Railroad Co....
228 Schermerhorn agt. Burgess..

123 People agt. Board of Town Auditors 23 Searles agt. Cronk....

320 People agt. Griffin... 475 | Shirley agt. Vail..

406 People agt. Haynes..

369
Smith agt. Butler....

192 People agt. Heffernan..

402 Stoddard agt. Denison........... 295 People agt. Naughton....

430
Strang agt. Newlin...........

364 Popper agt. Scheider...

34

V.
R.

Vanderheyden agt. Gary..... 367 Ramsey agt. Erie Railway Co...... 193

Veazie Bank agt. Fenno.................. 147 Reporter's Note ....

474 Rogers agt. Long Island R. R. Co... 289 Rogers ayt. Marshall..

43

W.
Rondout & Oswego R. R. Co., agt.
Field...

187 'Witbeck agt. Holland............. 273

PRACTICE REPORTS.

SUPREME COURT.

William G. Fargo as president of THE AMERICAN MER

CHANTS' UNION EXPRESS COMPANY, appellant agt. James
H. McVICKER, respondent.

Joint stock associations existent in this state, exercising such privileges as are given

them by the statutes of this state, and suing or being sued, in the name of their president or secretary, as to all questions relating to parties to suits in or to be removed into the courts of the United States, are to be regarded as under the

same rules as apply in such cases to corporations. Wbere buch joint stock association bas brought action in a court of this state in the

name of its president, and application is made by the defendant, a citizen of another state, to remove the same into the circuit court of the United States under the acts of congress of 1789 and March, 1867, such application cannot be defeated upon the ground that some of the stockholders of the joint stock association are

citizens of the state of which the defendant is also a citizen. The character of such joint stock associations, in corporate aspect, considered. Where a special term of the supreme court has guanted an order removing a cause

under the acts of congress referred to into the U. S. circuit court, &c., is such an order appealable to the general term ? This question also considered.

Erie General Term.
MARVIN, BARKER and LAMONT, Justices.

APPEAL by the plaintiff from an order made at special term.

This action was originally brought in the supreme court of the state of New York, by William G.Fargo as president of The American Merchants' Union Express Company, against a citizen of the state of Illinois. The American Merchants' Union Express Company is a joint stock association; and the action was brought under the provisions of the act of 1849, by which, "any joint stock company or association may sue or be sued in the name of the presi

Vou. XXXVIII.

1

Fargo agt. McVicker.

dent or treasurer," &c. (Sess. Laws 1849, 389, 3 R. S. 5th ed.,777.)

The defendant applied to a special term of the supreme court for the removal of the action into the circuit court of the United States, under acts of Congress—the act of 1789, and the act of March, 1867.

The application to remove the cause was opposed upon an affidavit showing that certain stockholders in the company were citizens of other states than the state of New York.

The special Term granted the application to remove.

No measures to stay proceedings under the so-called order of the special term have been taken. No point is made as to the regularity of any of the proceedings, and the main question, therefore, to be considered is : can the defendant in such a case compel the removal of the cause into the U. S. circuit ?

A preliminary question also arises as to the power of the general term of the supreme court to entertain appeal from the so-called order of the special term.

CLARENCE A. SEWARD and GEORGE B. HIBBARD, Coun

sel for defendant.

FirstNo appeal can be heard at general term from this so-called order of the special term.

I. The removal of the cause into the circuit court is at least substantially, (and it is claimed in every legal effect, point second), by operation of law. The sole duty of the supreme court is stated by the acts of 1789 and 1867. The acts provide that the citizenship of the parties, and the amount of the “matter in dispute," are to be made to "appear to the satisfaction of the court, and that the sufficiency of the surety is to be determined by the state court. This is all that the statute requires that court to do—all it can do. Wher, it has made decision as to these things it has ended its power. Its sole power in this respect is given by

Fargo agt. McVicker.

the acts of congress. A court of general jurisdiction, it has no power to deny its remedies to any party seeking to avail himself of its jurisdiction, except in pursuance of these and similar acts of congress. Its duty beneath these acts is to determine certain things. When it has determined those things; when it is “ satisfied” certain things exist, it becomes its duty, in the language of the statute, to "accept the surety and proceed no further in the cause." No order for a removal of the cause is necessary. It is not contemplated to be made by either statute. The court acting solely beneath these statutes is not given power to make any order. Although the decision of the court in this case may adopt the language of an order, it is not an order. It is destitute of all force, in so far as it orders anything, and therefore is no order in any sense.

It is but a decisiondeterrnination of the court the statement of its satisfaction as to certain things. It certainly is not an order within the definition of the Code. The Code defines an order to be a “ direction of a court or judge." (Code, $ 400.)

The decision of the only matters competent for the state court to decide under the acts of congress can in no sense be called “directions." They are no more " directions" than is the approval of the surety to an undertaking a "direction,” and no more the subject of appeal.

The Code has only provided (except from judgments, which of course has nothing to do with this case) for appeal from such orders as it defines. As the special term in no sense made such an order, in no sense gave any effectual direction—(the effect following from its conclusions)—the Code has failed to provide for appeal from any such decision, (Code, $ 349, and the cases cited in VoorhiesCode, Sth ed., 680), and of course, therefore, this appeal will not lie.

Nor does any appeal lie under any provision of the Code, even if this be an order. The section providing for appeals from orders ($ 349), can only apply to appeal from this so

« PreviousContinue »