WOODS, Circuit Judge.
The removal attempted in this case is claimed to be by virtue of the act of March 3, 1875. It is conceded that the petition and bond for removal were sufficient m form and substance, that they were filed within the time limited by the statute, and that the transcript of the record of the state court was filed in this court “on or before the first day of its then next session.” as required by law. The ground, and the only ground of the motion to dismiss is, that this is not such a suit as can, under the act of congress, be removed to this court. The second section of the act of March 3, 1870 (18 Stat. 470), declares “that any suit of a civil nature at law or in equity, now pending or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, * * * and in which there shall be a controversy between citizens of different states, * * * either party may remove said suit into the circuit court of the United States, for the proper district, and where, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of' different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy, may remove said suit to the circuit court of ihe United States for the proper district.” The matter in dispute, in this petition, largely exceeds the sum of five hundred dollars, exclusive of costs, the petitioners are all citizens of Alabama, and the defendants to the petition are all citizens of Georgia; it is therefore, a controversy between citizens of different states; the petitioners and the defendants are alone interested in the controversy, therefore it can be fully determined as between them. It is clear, therefore, that the controversy set out in the petition is one proper for removal, if the matter removed is “a suit of a civil nature at law or in equity.” The counsel for the petitioners assert that it is not a suit, but n mere incidental proceeding, an appendage to, or graft upon, a suit still pending in the state chancery court.
In support of this view they cite the following cases: West v. Aurora City, 6 Wall. [73 U. S.] 139; Bank v. Turnbull, 16 Wall. [83 U. S.] 190; and Webber v. Humphreys [Case No. 17,326].
The case of West v. Aurora City [supra] arose on an attempted removal of the case from the state to the federal court, under the twelfth section of the judiciary act, which restricts the right to remove to the defendant. Under the Code of the state of Indiana, where the suit was pending, the defendant was allowed. with his defense, to set forth counterclaims, or set-offs. In this case the suit appeared to be upon interest coupons on bonds issued by the defendant. The defendant having made defense by answer under the Code, filed by leave of the court, three paragraphs, setting up new defensive matter, and prayed an injunction against the plaintiffs, to restrain them from proceeding in any suit on the coupons or bonds, etc., and for a decree that the bonds be delivered up. Thereupon the plaintiff discontinued his suit, and assuming that the new paragraphs of the answer would remain in substance a new suit against him, filed his petition for the removal of the cause to the federal court, and it was removed accordingly, but was afterwards remanded by the federal to the state court.
In passing upon the propriety of this action of the circuit court, the supreme court said that the circuit court was clearly right in its action. The right of removal is given only to a defendant who has not submitted himself to the jurisdiction; not to an original plaintiff in a state court, who. by resorting to that jurisdiction, has become liable, under the state laws, to a cross-action. And it is given only to a defendant who promptly avails himself of the right at the time of appearance, by declining to plead, and filing his petition for removal. It is evident that this cause, decided under the twelfth section of the judiciary act, is not an authority applicable to the matter in hand.
In the case of Bank v. Turnbull, supra, there was an execution issued upon a Judgment recovered by the bank against one Thomas, which was levied on property claimed by Turnbull, who were allowed to intervene and set up their ownership, and a jury was ordered to be called to decide whether the property levied on belonged to Turnbull or Thomas. This issue was removed to the United States circuit court, and, after final judgment, to the supreme court, and the question was presented to the supreme court, whether it was a suit properly removable, under the act of March 2, 1867 (14 Stat. 558), for the removal of causes. The supreme court held that the matter removed “was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation. * * * The contest could not have arisen but for the judgment and execution, and satisfaction of tue former would at once have extinguished the controversy between tire parties.”
In the case of Webber v. Humphreys, supra, a Missouri statute provided that if no property of a corporation could be found to satisfy an execution issued against it, then such execution might be issued against any of the stockholders to the amount unpaid on their stock, provided that execution should not issue against a stockholder except by order of the court, made upon due notice to him. Such a motion was made in that case, and the court held that it was not a suit which could be removed from the state to the federal court.
[NOTE. Upon the hearing of this case upon its merits, a decree in favor of plaintiffs was entered for $35,161.21. Case unreported. This was reduced by the supreme court, upon appeal, to $17,580. 113 U. S. 116, 5 Sup. Ct. 387.]
The ease of Bank v. Turnbull [supra] and the case just referred to, were clearly not independent suits. They could not be severed from the case to which they belonged. In both cases they were merely proceedings to regulate and control the processes of the court in the case to which the proceedings appertained.
The question then recurs, is the petition in this case a suit? In my judgment, it has all the necessary elements of a bill in equity, and is a bill in equity. If the purpose of the petition in this case were to obtain an order of the court that the petitioners’ fees fqf services might be paid out of the property of their clients, which their services had secured and brought into court, or which the court had in its possession, there might be some ground for the idea that this was a graft on the main suit. But that is not the object of the petition. The petitioners are asserting a claim for their fees, not against their own clients, but, in effect, against the property of the opposite party. The clients of the petitioners were primarily liable for the petitioners’ fees. Their claims have been satisfied,*but they have failed to pay the fees due the petitioners. The attempt is, in effect, to subject the property of the opposite party to the payment of the fees of petitioners. This surely is not a graft on the main case. The petitioners assert a lien on the property of defendants. They declare that defendants are trustees for them, and they charge fraud practiced by defendants to their damage and injury. They seek to enforce the lien and trust. They pray for an account of the amount due to them by reason of the trust.
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WOODS, Circuit Judge.
The removal attempted in this case is claimed to be by virtue of the act of March 3, 1875. It is conceded that the petition and bond for removal were sufficient m form and substance, that they were filed within the time limited by the statute, and that the transcript of the record of the state court was filed in this court “on or before the first day of its then next session.” as required by law. The ground, and the only ground of the motion to dismiss is, that this is not such a suit as can, under the act of congress, be removed to this court. The second section of the act of March 3, 1870 (18 Stat. 470), declares “that any suit of a civil nature at law or in equity, now pending or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, * * * and in which there shall be a controversy between citizens of different states, * * * either party may remove said suit into the circuit court of the United States, for the proper district, and where, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of' different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy, may remove said suit to the circuit court of ihe United States for the proper district.” The matter in dispute, in this petition, largely exceeds the sum of five hundred dollars, exclusive of costs, the petitioners are all citizens of Alabama, and the defendants to the petition are all citizens of Georgia; it is therefore, a controversy between citizens of different states; the petitioners and the defendants are alone interested in the controversy, therefore it can be fully determined as between them. It is clear, therefore, that the controversy set out in the petition is one proper for removal, if the matter removed is “a suit of a civil nature at law or in equity.” The counsel for the petitioners assert that it is not a suit, but n mere incidental proceeding, an appendage to, or graft upon, a suit still pending in the state chancery court.
In support of this view they cite the following cases: West v. Aurora City, 6 Wall. [73 U. S.] 139; Bank v. Turnbull, 16 Wall. [83 U. S.] 190; and Webber v. Humphreys [Case No. 17,326].
The case of West v. Aurora City [supra] arose on an attempted removal of the case from the state to the federal court, under the twelfth section of the judiciary act, which restricts the right to remove to the defendant. Under the Code of the state of Indiana, where the suit was pending, the defendant was allowed. with his defense, to set forth counterclaims, or set-offs. In this case the suit appeared to be upon interest coupons on bonds issued by the defendant. The defendant having made defense by answer under the Code, filed by leave of the court, three paragraphs, setting up new defensive matter, and prayed an injunction against the plaintiffs, to restrain them from proceeding in any suit on the coupons or bonds, etc., and for a decree that the bonds be delivered up. Thereupon the plaintiff discontinued his suit, and assuming that the new paragraphs of the answer would remain in substance a new suit against him, filed his petition for the removal of the cause to the federal court, and it was removed accordingly, but was afterwards remanded by the federal to the state court.
In passing upon the propriety of this action of the circuit court, the supreme court said that the circuit court was clearly right in its action. The right of removal is given only to a defendant who has not submitted himself to the jurisdiction; not to an original plaintiff in a state court, who. by resorting to that jurisdiction, has become liable, under the state laws, to a cross-action. And it is given only to a defendant who promptly avails himself of the right at the time of appearance, by declining to plead, and filing his petition for removal. It is evident that this cause, decided under the twelfth section of the judiciary act, is not an authority applicable to the matter in hand.
In the case of Bank v. Turnbull, supra, there was an execution issued upon a Judgment recovered by the bank against one Thomas, which was levied on property claimed by Turnbull, who were allowed to intervene and set up their ownership, and a jury was ordered to be called to decide whether the property levied on belonged to Turnbull or Thomas. This issue was removed to the United States circuit court, and, after final judgment, to the supreme court, and the question was presented to the supreme court, whether it was a suit properly removable, under the act of March 2, 1867 (14 Stat. 558), for the removal of causes. The supreme court held that the matter removed “was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation. * * * The contest could not have arisen but for the judgment and execution, and satisfaction of tue former would at once have extinguished the controversy between tire parties.”
In the case of Webber v. Humphreys, supra, a Missouri statute provided that if no property of a corporation could be found to satisfy an execution issued against it, then such execution might be issued against any of the stockholders to the amount unpaid on their stock, provided that execution should not issue against a stockholder except by order of the court, made upon due notice to him. Such a motion was made in that case, and the court held that it was not a suit which could be removed from the state to the federal court.
[NOTE. Upon the hearing of this case upon its merits, a decree in favor of plaintiffs was entered for $35,161.21. Case unreported. This was reduced by the supreme court, upon appeal, to $17,580. 113 U. S. 116, 5 Sup. Ct. 387.]
The ease of Bank v. Turnbull [supra] and the case just referred to, were clearly not independent suits. They could not be severed from the case to which they belonged. In both cases they were merely proceedings to regulate and control the processes of the court in the case to which the proceedings appertained.
The question then recurs, is the petition in this case a suit? In my judgment, it has all the necessary elements of a bill in equity, and is a bill in equity. If the purpose of the petition in this case were to obtain an order of the court that the petitioners’ fees fqf services might be paid out of the property of their clients, which their services had secured and brought into court, or which the court had in its possession, there might be some ground for the idea that this was a graft on the main suit. But that is not the object of the petition. The petitioners are asserting a claim for their fees, not against their own clients, but, in effect, against the property of the opposite party. The clients of the petitioners were primarily liable for the petitioners’ fees. Their claims have been satisfied,*but they have failed to pay the fees due the petitioners. The attempt is, in effect, to subject the property of the opposite party to the payment of the fees of petitioners. This surely is not a graft on the main case. The petitioners assert a lien on the property of defendants. They declare that defendants are trustees for them, and they charge fraud practiced by defendants to their damage and injury. They seek to enforce the lien and trust. They pray for an account of the amount due to them by reason of the trust. Seek to enforce the lien by a sale of the property on which it rests, and they pray that defendants may answer, and for general relief, and that notice may be served on the defendants. An order to bring defendants in by publication was actually taken.
Here are all the essential elements of a bill in equity. See Stickney v. Wilt, 23 Wall. [90 U. S.] 150, where a proceeding, not as much like a suit in equity as this, was declared to be such. This case might have been brought as anindependentsuit,eitherin the state chancery court or in this court The full settlement and adjustment of the original claim would not settle or adjust the controversy between these parties. This suit had its origin in the original case, but is not a part of it, or dependent on it. The case falls within the rule laid down in West v. Aurora City, supra: “It is a suit regularly commenced by a citizen of the stare in which the suit is brought, by process served on a defendant who is a citizen of another state.” This court, if it snould proceed to a decree in favor of the petitioners, and establish their lien on the property of defendants, would not necessarily interfere with the property in the possession of the state court. If this court establishes the claim and .lien of the petitioners, that lien can be enforced as soon as the hand of the state court is taken from the property; or, the petitioners, having established their lien in this court, could propound their claim in the state court, if that court were proceeding with the administration of the property.
We are satisfied that this is a new cause, entirely independent of the original case, that could be commenced and prosecuted after the original case had been entirely disposed of and ended. That it is a suit in equity between new parties on a new cause of action, and as it fills all other requirements of the statute, it is a cause proper to be removed to this court. The motion to dismiss must therefore be overruled