Page:Federal Reporter, 1st Series, Volume 9.djvu/652

 PEATT V. ALBRIGHT. 637 �ment that the act of 1875 is in that regard different from the judi- ciary act of 1789, or the removal acts of 1866 and 1867. �In lowa an "oocupying claimant" of land, who is an unsuecessful defendant in an ejectment suit, bas the right to retain possession, after Judgment against him, until the value of his improvements are as- certained, provided he files his petition therefor in the main action after judgment, but before the plaintiff causes it to be executed. In Chapman v. Barger, i Dill. 557, it was held that this proceeding by petition, for ascertainment of the value of improvements upon land, was not removable to the federal court under the act of March 3, 1875 ; and for the reason that it was essentially part of and ancil- lary to the main suit, which was at an end, judgment having been rendered therein in the state court. So, with equal force, I think it may be said of the case at bar, that the garnishee proceeding is a dependence of and ancillary to the principal suit, which has been brought to an end by judgment in the state court. �In Webber v. Htimphries, 8 Eep. 66, an execution upon a judgment in a state court against a corporation was returned niilla bona, and a motion was then made under the statutes of Wisconsin for an execu- tion against one of the stockholders. The stockholder then took the necessary steps to remove the case into the federal court, and a motion to remand was sustained on the ground that the proceeding sought to be removed was a mere sequence or dependency, or proceeding sup- plemental to the main action. �InBank v. Turnbull e Go. 16 Wall. 190, after judgmeut recovered in a state court, an execution was issued and levied upon property in the possession of the judgment debtor, but the ownership of which was claimed by third parties. The elaimants, Turnbull & Co., thereupon applied to the court under the statutes of the state for leave to intervene in the original suit, and to order an issue to try the right of property. Leave was granted, and an order was made for trial by jury of the question whether the judgment debtor or Turnbull & Co. owned the property. Thereupon, the elaimants of the property removed the case to the federal court, and the question decided by the supreme court was whether the case was thus removable. Mr. Justice Swavoe. speaking for the court, said : �••Conceding it [meaning the proceedifig instituted to try the right of prop- erty] to be a suit, and not essentially a motion, we think it was merely aux- iliary to the original action, a graft upon it, and not an independent and separate litigation. A judgment had been recovered in the original suit, final piocess was levied upor the property in question to satisfy it, the property ��� �