Page:Federal Reporter, 1st Series, Volume 9.djvu/650

 PEATT V. ALBBI0HT. 635 �garnishee proceedings against D. W. King, named also as defendant, as the action is entitled in this court. The foundation of these proceedings was euch an affidavit as the statute requires, and the garnishee was summoned to appear and answer whether he was indebted to the principal defendant, Both the affidavit and the summons were entitled, "Joseph Pratt, plaintiff, v. S. C. AI- bright, defendant; D. W. King, garnishee." The garnishee, by answer in due form, denied all indebtedness or liability to the principal defendant, and an issue upon that question was thus formed. Afterwards, and while the garnishee proceeding was pend- ing, judgment was obtained by the plaintiff upon his demand in the principal action against the defendant. Thereupon, the plaintiff, a citizen of Dlinois, filed a petition in the state court for removal of the case to this court ; King as garnishee and Albright as the prin- cipal debtor being named in the petition as citizens of Wisconsin, and as defendants in the action or proceeding sought to be removed, Upon the execution of the requisite bond the state court ordered the case removed to this court. Tho removal was made under the act of March 3, 1875, and the evident purpose of the plaintiff was to briug the garnishee proceedings into the federal court for final dispo- sition. A motion is now inade to remand, and the determination of the motion involves the question whether the action against the gar- nishee is a suit that may be thus removed within the contemplation of the removal act. �The language of the second section of that act is "that any suit of a civil nature, at law or in equity, now pending, etc ., * * * in which there shall be a controversy between citizens of different states, may be removed." It is, of course, obvious that the principal suit, wherein the plaintiff and Albright were the sole parties, could not be removed when the present removal proceedings were instituted, because final judgment'in that action had been previously entered. What was the garnishee proceeding? In the light in which it must now be considered, was it anything more than a graft upon the prin- cipal action — a mere auxiliary or incident to the main proceeding ? It seems to me it was not, and that, under the authorities most direetly applicable, it must be so regarded. It was in the nature of a supplementary or auxiliary proceeding in aid of a suit for the recovery of a debt, which suit could not be removed because it was determined before any removal to the federal court was attempted. It is true that under the state statute the garnishee is required by summons to answer the plaintiff's affidavit upon y/hich the proceed- ��� �