Page:Federal Reporter, 1st Series, Volume 9.djvu/448

 iieybb v. norton. 433 �Mbybb & Hat v. Noeton & Calhoun. {Cwmit Court, D. Kentueky. November 15, 1881.) �1. Rbmovai. of Causbs— Act of 1875. �Within the meaning of the third section of the act of 1875, the petition for removal is flled in time, if flled at the flrst term at which, by the law and prac- tice of that court, the cause could have been made ready and tried. �2. Bame— Samb— Tbial. �There hasbeen a trial, within the meaning of that act, if a judgment bas been • rendered in the state court sustaining a demurrer to the answer put in in the suit there, and dismissing a cross-petition with costs. �Baeb, D. J. This action was commenced on the fifteenth of De- cember, 1874, in the Louisville chancery court, by Mayer & Hay against the Louisville, Paducah & Southwestem Eailroad Company, and certain subseribers to its capital stock. �The plaintifEs had judgments against said company, upon which executions had been issued and returned " no property found," and they sought to sub- ject to the payment of their judgments certain unpaid subscriptions to the capital stock of the company. They had process of garnishment issued and served, and they also made the subseribers to the stocli parties defendant. One of the defendants pleaded that Norton & Calhoun, to whom the com- pany had made a mortgage on its property to secure three millions of dollars which had been issued in coupon bonds, had a claim on the unpaid stocli sub- scription, and required that they be made parties. This was done by an amended petition, filed April 12, 1875, and Norton & Calhoun entered their appearance, and without filing answer moved the court to remove the cause to the United States circuit court. The petition for removal was filed the fourth of June, 1875. Previous to that time, in April, 1875, Norton & Cal- houn had flled in this court a suit for the foreelosure of the mortgage executed to them on the road and its property, and when the cause was removed to this court it was Consolidated with the suit already pending. This mortgage was dated March 1, 1870, and suit for its foreelosure was brought April 25, 1875. The cause remained in this court until October 2, 1877, when it was remanded to the state court; this court making the folio wing order: "Meyer & Hay v. L., P. & S. W. R. Co. �" This day came Eckstein Norton and Philo C. Calhoun, by H. C. Purdell, their counsel, and on their motion it is.ordered that this cause be, and the same is, hereby remanded back to the Louisville chancery court, from whenee it came." �Norton & Calhoun flled their answer and cross-petition on the nineteenth of October, 1877, in which they claimed the unpaid subscription to the capital stock of the L., P. & S. W. R. Co. as being included in the mortgage, and asked that the unpaid stock subscription of certain parties, who were made defend- ants in the cross-petition, should be decreed to them as trustees under the mortgage. Meyer & Hay filed a demurrer to this answer and cross-petition, which was sustained by the Louisville chancery court, and as they failed to v.9,no.7— 28 ��� �