Sully v. Drennan

This appeal is from the order of the circuit court for the Southern district of Iowa, remanding to the state court a case which had been removed from the state into the circuit court. The suit was brought originally in the district court of the state by James N. Drennan and others, tax-payers of Prairie township, in the county of Mahaska.

The allegations of the bill necessary for our consideration are that on May 11, 1880, the voters of said township voted a tax of 3 per cent. upon the taxable property of said township to aid in constructing a railroad by a company whose name was afterwards lawfully changed to that of the Chicago, Burlington & Pacific Railroad Company. That by the order and notice submitting the question to vote, it was provided that one-half of the tax should be collected the first year and one-half the second year; the said road to be fully completed and running to a depot within the town of Sharon, in said township, before the tax is due and collectible by the said railroad company; and if not built within two years from the day of the election said tax never to be collectible; that the railroad was not completed to a depot in Sharon within two years from the date of the vote; that it was not completed from Sharon to any other town. That Morgan, president of the railroad company and another director, pending the consideration of the matter by the voters, made false and fraudulent representations to them that the company had arrangements with the Chicago, Burlington & Quincy Railroad Company, and the Chicago, Milwaukee & St. Paul Railroad Company, by which either of these companies would build and equip the road to the town of Sharon as soon as the tax was voted; that the railroad company, by its officers and agents, are demanding of the trustees of the township that they certify to the county treasurer of Mahaska county that the conditions required by said vote have been complied with, and are threatening, by suits against them and otherwise, to compel them to make such certificate, and petitioners fear that said trustees will yield and make the certificate unless restrained by the act of the court. They aver that one Alfred Sully claims some interest in the tax, and ask that he be made a party to the suit so that he may be estopped by the judgment. They say the tax is illegal and void for many reasons, and pray for an injunction against the trustees from certifying to the county treasurer that the conditions of the vote have been complied with, and the county treasurer, John H. Warren, and his successor in office, and the Chicago, Burlington & Pacific Railroad Company, and Alfred Sully, from in any manner attempting to collect said tax, or from endeavoring to procure said certificate from the trustees of Prairie township.

The notice, which in the Iowa practice stands for the original writ, was returnable to the May term, 1883, and service acknowledged by the trustees and treasurer on the twentieth day of March, and on the railroad company, March 29th. The day required for the appearance and pleading of the defendants was May 11th. A temporary injunction was granted September 13, 1883. It seems that on the fifteenth day of May the case was, by order of the judge of the district court, who had been of counsel in it, transferred to the circuit court of the same county, the judge of which granted the injunction. At the October term of this court all the parties, including Sully, who had not been served with notice, appeared. A demurrer was interposed by Sully, and overruled. Many motions were made and decided about the pleadings, and the railroad company, Sully, and Warren filed a joint answer denying the right to the relief prayed. The pleadings were finally made up at this term. At the next term of that court, in May, the application of Sully to remove the case into the United States court was made on the ground that he was a citizen of the state of New York, and all the other parties were citizens of Iowa. He claimed to have an assignment from the railroad company of the right to the taxes. The state court refused to make the order, and Sully took a transcript of the record and filed it in the circuit court for the Southern district of Iowa. When the attention of that court was called to the matter, the case was remanded to the state court, and from that order this appeal is taken.

''Chas. A. Eldredge and J. C. Cook'', for appellants.

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''Geo. C. Morgan, H. S. Winslow, and L. C. Blanchard'', for appellees.

Mr. Justice Miller delivered the opinion of the court. He recited the facts as above stated, and continued: