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BROOKS V. CLARK, 119 U. S. 502 (1886)

U.S. Supreme Court

Brooks v. Clark, 119 U.S. 502 (1886)

Brooks v. Clark

Submitted November 17, 1886

Decided December 13, 1886

119 U.S. 502


On the 31st December, 1884, A, a citizen of Pennsylvania, sued out of a court of that state a summons in an action on contract to recover a balance of money lent against B, a citizen of New York, and C, a citizen of Pennsylvania, surviving partners of D, returnable on the 1st Monday in January then next, and C accepted service before the return day. On the 26th of January, 1880, judgment was entered against both defendants for want of defense, under the practice in that state. On the 3d February, 1885, B voluntarily appeared and accepted service with the like force

Page 119 U. S. 503

as if the writ had been returnable on the 1st Monday in April and had been served on the 1st Monday in March. On May 2d 1885, B filed his affidavit of defense and immediately filed a petition for the removal of the case to the circuit court of the United States on the ground that the controversy in the suit was between citizens of different states. The cause being removed, it was, on motion of the plaintiff, remanded to the state court on the ground that it appeared by the record that defendants were not both citizens of another state than plaintiff, and that plaintiff was a citizen of Pennsylvania. Held (1) that under the practice in Pennsylvania, this was a proceeding in the original suit under the original cause of action; (2) that the controversy was not a separable one within the meaning of the removal act of 1875; (3) that the fact that the liability of C had been fixed by the entry of judgment against him did not affect the principle.

A removal of a cause from a state court to a federal court made on a petition under the Act of March 3, 1875, 18 Stat. 470, on the ground of a separable controversy, takes the whole cause from the jurisdiction of the state court, but a removal for the same cause under the act of 1866 may take only the separate controversy of the petitioning defendant, leaving the state court to proceed against the other defendants.

Yulee v. Vase, 99 U. S. 539, distinguished.

Barney v. Latham, 103 U. S. 205, affirmed.

Putnam v. Ingraham, 114 U. S. 5i, affirmed.

This is a writ of error brought under § 5 of the Act of March 3, 1875, c. 137, 18 Stat. 470, for the review of an order of the circuit court remanding a case which had been removed from the Court of Common Pleas No. 1 of the County of Philadelphia, Pennsylvania. The facts are these:

On the 31st of December, 1884, Edward S. Clark sued out of the court of common pleas a writ of summons against "Charles H. Brooks and Josiah D. Brooks, surviving partners of D. Leeds Miller, deceased, trading as Brooks, Miller & Co.," returnable on the first Monday of January then next. Before the return of the writ, Josiah D. Brooks endorsed thereon as follows: "I accept service of within writ. Josiah D. Brooks."

On the 12th day of January, 1885, Clark filed an "affidavit of loan" in accordance with the provisions of a statute of Pennsylvania, showing that the suit was brought for $15,000, balance due to him on the 31st of December, 1876, for moneys lent the firm of Brooks, Miller & Co., on which interest had

Page 119 U. S. 504

been paid to October 30, 1884. Appended to this affidavit was what purported to be "a copy of account from defendant's books," showing the loan and cash paid for interest. By a statute of Pennsylvania, it was lawful for the plaintiff, "on or at any time after the third Saturday succeeding" the return day of the writ,

"on motion, to enter a judgment by default, . . . unless the defendant shall previously have filed an affidavit of defense, stating therein the nature and character of the same."

Josiah D. Brooks did not file an affidavit of defense within the time thus limited, and accordingly, on the 26th of January, 1885, the following entry was made in the cause: "And now, on motion of Pierce Archer, Esq., the court enters judgment against the defendants for want of an affidavit of defense."

On the same day, an assessment of damages was also filed in the cause, as follows:

"I assess damages as follows:"

Real debt . . . . . . . . . . . . . . . $15,000

Int. from 10-30-84, to 1-24-85. . . . . 210




"pro Proth'y"

This, according to the law and practice in Pennsylvania, was a final judgment in the action against Josiah D. Brooks for the amount of damages so assessed, and, accordingly, in the docket entries this appears:

"January 26, 1885. Judg't for want of aff. of defense against Josiah D. Brooks only."

"Eo die. Dam's assessed at $15,210."

On the 3d of February, 1885, Charles H. Brooks voluntarily caused to be endorsed on the original summons, then in court, the following:

"I accept service of the writ for Charles H. Brooks with like force and effect as if the writ had been issued ret'd to the

Page 119 U. S. 505

first Monday of April, and had been served on or before the first Monday of March, A.D. 1885."


"Att'y Ch. H. Brooks"

On the second day of May, 1885, Charles H. Brooks filed in the cause his affidavit of defense, in which he set forth, in substance, that until the 31st of December, 1879, he was a member of the firm of Brooks, Miller & Co.; that previous to that time, Clark had deposited moneys with the firm, and on that day there was due him $15,000, for which he held the firm's due-bill; that on that day Josiah D. Brooks and Miller purchased the interest of Charles H. Brooks in the firm, paying him therefor $21,749.40, and assuming all the debts; that the partnership was thereupon dissolved, and Clark duly notified; that, immediately on the dissolution, Josiah D. Brooks and Miller formed a new partnership, and continued the old business; that Clark was duly notified of the assumption by the new firm of all the debts of the old, and with this knowledge gave up the due-bill of the old firm which he held, and took another for the same amount from the new firm, in full satisfaction and discharge of the original indebtedness, and that the new firm paid the interest as it thereafter accrued until the time mentioned in the affidavit of loan, to-wit, October 30, 1884. On this state of facts, Charles H. Brooks insisted, by way of defense, that he was discharged from all liability.

Immediately on filing this affidavit of defense, Charles H. Brooks presented a petition for the removal of the suit to the Circuit Court of the United States for the Eastern District of Pennsylvania, the material parts of which are as follows:

"The petition of Charles H. Brooks, defendant above named, who was sued with Josiah D. Brooks, as surviving partners, . . . respectfully represents that the controversy in this suit is between citizens of different states; that your petitioner was at the time of the commencement of this suit, and still is, a citizen of the State of New York, and that the said plaintiff, Edward S. Clark, was then and still is a citizen of the state

Page 119 U. S. 506

of Pennsylvania, and that the matter and amount in dispute in the said suit exceeds, exclusive of costs, the sum or value of five hundred dollars."

On the 23d of May, 1885, the suit was entered by Charles H. Brooks in the circuit court, and, on the 8th of September following, Clark moved that it be remanded. Afterwards, on the 8th of October, this motion was granted,

"it appearing by inspection of the record that the defend. ants are not both citizens of another state than the plaintiff, and that said Josiah D. Brooks is a citizen of Pennsylvania."

To reverse that order this writ of error was brought.

Page 119 U. S. 509

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