Brooks v. Clark

This is a writ of error brought under section 5 of the act of March 3, 1875,c. 137 (18 St. pt. 3, 470,) for the review of an order of the circuit court remanding a case which had been removed from the court of common pleas No. 1 of the county of Philadelphia, Pennsylvania. The facts are these:

On the thirty-first of December, 1884, Edward S.C.lark sued out of the court of common pleas a writ of summons against 'Charles H. Brooks and Josiah D. Brooks, surviving partners of D. Leeds Miller, deceased, trading as Brooks, Miller & Co.,' returnable on the first Monday of January then next. Before the return of the writ Josiah D. Brooks indorsed thereon as follows: 'I accept service of within writ. JOSIAH D. BROOKS.'

On the twelfth day of January, 1885, Clark filed an 'affidavit of loan' in accordance with the provisions of a statute of Pennsylvania, showing that the suit was brought for $15,000, balance due to him on the thirty-first of December, 1876, for moneys lent the firm of Brooks, Miller & Co., on which interest had been paid to October 30, 1884. Appended to this affidavit was what purported to be 'a copy of account from defendant's books,' showing the loan and cash paid for interest. By a statute of Pennsylvania it was lawful for the plaintiff, 'on or at any time after the third Saturday succeeding' the return-day of the writ, 'on motion, to enter a judgment by default, * * * unless the defendant shall previously have filed an affidavit of defense, stating therein the nature and character of the same.' Josiah D. Brooks did not file an affidavit of defense within the time thus limited, and accordingly, on the twenty-sixth of January, 1885, the following entry was made in the cause: 'And no, on motion of Pierce Archer, Esq., the court enters judgment against the defendants for want of an affidavit of defense.'

On the same day an assessment of damages was also filed in the cause, as follows:

"I nassess damages as follows:

Real debt,...................... $15,000

Int. from 10-30-84, to 1-24-85,..... 210

---

$15,210

"J. KENDERDINE, pro Proth'y."

This, according to the law and practice in Pennsylvania, was a final judgment in the action against Josiah D. Brooks for the amount of damages so assessed, and, accordingly, in the docket entries this appears:

'January 26, 1885. Judg't for want of aff. of defense against     Josiah D. Brooks only.

'Eo die. Dam's assessed at $15,210.'

On the third of February, 1885, Charles H. Brooks voluntarily caused to be indorsed on the original summons, then in court, the following:

'I accept service of the writ for Charles H. Brooks with like     force and effect as if the writ had been issued ret'd to the first Monday of April, and had been served on or before the      first Monday of March, A. D. 1885.

'JOHN G. JOHNSON, Att'y Ch. H. Brooks.'

On the second day of May, 1885, Charles H. Brooks filed in the cause his affidavit of defense, in which he set forth, in substance, that until the thirty-first of December, 1879, he was a member of the firm of Brooks, Miller & Co.; that previous to that time Clark had deposited moneys with the firm, and on that day there was due him, $15,000, for which he held the firm's due-bill; that on that day Josiah D. Brooks and Miller purchased the interest of Charles H. Brooks in the firm, paying him therefor $21,749.40, and assuming all the debts; that the partnership was thereupon dissolved, and Clark duly notified; that, immediately on the dissolution, Josiah D. Brooks and Miller formed a new partnership, and continued the old business; that Clark was duly notified of the assumption by the new firm of all the debts of the old, and with this knowledge gave up the due-bill of the old firm which he held, and took another for the same amount from the new firm, in full satisfaction and discharge of the original indebtedness; and that the new firm paid the interest as it thereafter accrued until the time mentioned in the affidavit of loan, to-wit, October 30, 1884. On this state of facts Charles H. Brooks insisted, by way of defense, that he was discharged from all liability.

Immediately on filing this affidavit of defense Charles H. Brooks presented a petition for the removal of the suit to the circuit court of the United States for the Eastern district of Pennsylvania, the material parts of which are as follows: 'The petition of Charles H. Brooks, defendant above named, who was sued with Josiah D. Brooks, as surviving partners,' etc., 'respectfully represents that the controversy in this suit is between citizens of different states; that your petitioner was at the time of the commencement of this suit, and still is, a citizen of the state of New York, and that the said plaintiff, Edward S.C.lark, was then, and still is, a citizen of the state of Pennsylvania; and that the matter and amount in dispute in the said suit exceeds, exclusive of costs, the sum or value of five hundred dollars.'

On the twenty-third of May, 1885, the suit was entered by Charles H. Brooks in the circuit court, and, on the eighth of September following, Clark moved that it be remanded. Afterwards, on the eighth of October, this motion was granted; 'it appearing by inspection of the record that the defend. ants are not both citizens of another state than the plaintiff, and that said Josiah D. Brooks is a citizen of Pennsyivania.' To reverse that order this writ of error was brought.

John G. Johnson and Frank P. Pritchard, for plaintiff in error.

[Argument of Counsel from pages 506-509 intentionally omitted]

Pierce Archer, for defendant in error.

WAITE, C. J.