Page:Federal Reporter, 1st Series, Volume 9.djvu/653

 638 PEDBBAL EEPORTER. �■w'as claimed by Turnbull & Co., and this proceeding, autliorized by the laws of Virginia, was resorted to to settle the question whether the property ought to be so applied. The contest could not have arisen but for the judgtnent and execution, and the satisfaction of the former would at once have extinguished the controversy between the parties. The proceeding was necessarily insti- tuted in the court where the judgment was rendered, and whence the execu- tion issued. No other court, according to the statute, could have talcen juris- diction. It was provided to enable the court to determine whether its process had, as was claimed, been misapplied, and what right and justice required should be done touching the property in the hands of its ofHcer. It was intended to enable the court, the plaintifl in the original action, and the claim- ant, to reach the final and proper resuit by a process at once speedy, informai, and inexpensive. That it was only auxiliary and incidental to the original suit, is, we think, too clear to require discussion." �In accordance with these views the court below was directed to remit the case to the state court, and nothing need be added to the foregoing extract from the opinion of the court in the case cited, to «mphasize the analogy upon principle between that case and the case at bar. �In Barrow v, Hunton, 99 U. S. 80, an action of nullity was insti- tuted in a state court to set aside a judgment that had been reoovered in the same court wherein that action was brought. The case was lemoved to the federal court, and the question decided by the supreme court was whether the proceeding to procure nullity of the judgment was to such an extent an independent, separate suit as to make it removable. It was held that it was rather in the nature of a supple- mentary proceeding, so connected with the original suit as to form an incident to it and substantially a continuation of it, and was not transferable to the federal court as a suit of which that court could take cognizance. �The statute of Wisconsin relating to garnishment, as we have eeen, provides for garnishee proceedings as well after the issuing of an exe- cution as before judgment, and if in this case execution had been issued, and the proceeding against the garnishee had taken place after that event, I think it would hardly be eontended, in the light of the authorities, that such a proceeding could be removed to the federal court any more than a proceeding purely supplementary to execution could be so removed. And when we consider the essential character of a garnishee proceeding, I do not think the fact that the action against the garnishee was instituted while the principal suit was pending, and before judgment and execution, lends any additional force to the argument in favor of removal. ��� �