In Re Metropolitan Trust Company of the City of New York

This is an application by the Metropolitan Trust Company of the City of New York, which had been impleaded as a defendant in the suit of Pollitz v. Wabash R. Co. for a writ of prohibition or mandamus, directed to the circuit court of the United States for the southern district of New York, to forbid the exercise of jurisdiction over the petitioner and over a decree dated January 10, 1908, in its favor in said suit, and in the alternative to provide that any order for the vacating of said decree should be set aside. A rule to show cause was issued, to which return has been made, and from the petition and return the following facts appear:

On or about January 15, 1907, James Pollitz brought suit in the supreme court of the state of New York against the Wabash Railroad Company and others to declare illegal and void certain securities of the railroad company, issued in exchange for debenture bonds, pursuant to a plan complained of as injurious to the stockholders, and for a re-exchange, and, in default thereof, for an accounting by the defendants with respect to the new securities which had been issued.

On January 25, 1907, the railroad company caused the case to be removed to the circuit court of the United States for the southern district of New York, on the ground that there was a separable controversy between it, as a citizen of the state of Ohio, and the complainant, a citizen of the state of New York.

The complainant moved to remand the cause, and on February 21, 1907, the motion was denied. Thereupon application was made to this court for a writ of mandamus to compel the remand, and the petition was denied. Re Pollitz, 206 U.S. 323, 51 L. ed. 1081, 27 Sup. Ct. Rep. 729.

After the removal of the cause, the defendants demurred to the bill of complaint, the trust company demurring separately, and all the demurrers were overruled, save that of the trust company, which was sustained. A decree was entered on January 10, 1908, which, after overruling the other demurrers, provided as follows:

'Ordered, adjudged, and decreed, that the demurrer of the defendant the Metropolitan Trust Company of the City of New York, be, and the same hereby is, sustained, and that the bill of complaint be, and the same hereby is, dismissed as to the defendant the Metropolitan Trust Company of the City of New York, with costs.'

The defendants other than the trust company then answered. An earlier suit, to which the trust company was not a party, was pending in the same court, with regard to the same transaction, and the court, denying the motion of the complainant for leave to discontinue the first suit, ordered the suits to be consolidated. After hearing, a final decree was entered on February 23, 1909 [167 Fed. 145], dismissing the bill in each suit upon the merits.

The complainant then appealed to the circuit court of appeals, but no review was sought of the decree of January 10, 1908, dismissing the bill in the second suit as against the trust company; and the trust company was not cited and did not in any way become a party to the appeal.

On February 8, 1910, the circuit court of appeals decided that there was not a separable controversy between the complainant and the railroad company, and that the motion to remand should have been granted. The court accordingly reversed the final decree, with direction to the circuit court to permit the complainant to discontinue the first cause, and to remand the second cause to the supreme court of the state of New York. [100 C. C. A. 1, 176 Fed. 333.]

Thereupon, on February 28, 1910, an order for remand was entered in the circuit court, which contained the following provision as to the trust company:

'And it appearing that the defendant Metropolitan Trust Company duly demurred to the complaint, and that such demurrer was sustained and judgment entered January 10, 1908, dismissing the complaint as to said defendant, which has not been appealed from or reversed,

'Ordered, adjudged and decreed that this judgment remanding said cause to the supreme court of the state of New York shall not apply to said defendant Metropolitan Trust Company.'

On March 21, 1910, the complainant moved in the circuit court to vacate the decree entered January 10, 1908, and to remand the cause as to the trust company. The latter appeared specially and objected to the jurisdiction of the court. The court granted the motion to vacate the decree, and denied the motion to remand the cause as to the trust company, without prejudice, upon the ground that the application for such relief should be made to the judge who entered the order to remand as to the other defendants. [180 Fed. 950.]

The trust company then applied to this court for a writ of prohibition or mandamus, as stated.

Mr. Tompkins McIlvaine for petitioner.

Mr. J. Aspinwall Hodge for respondent.

Statement by Mr. Justice Hughes:

[Argument of Counsel from pages 316-318 intentionally omitted]

Mr. Justice Hughes, after making the foregoing statement, delivered the opinion of the court: