Elliott v. Stocks & Bro. , 67 Ala. 290 ( 1880 )

STONE, J.

— The question which meets us at the threshold of this case is, did the Circuit Court err in refusing to remove the claim suit, or trial of the right of property, to the Circuit Court of the United States ? The application was made under the act of Congress, approved March 2d, 1867, which is in the following language : “ That when a suit may hereafter be brought in any State court, in which there is controversy between a citizen of the State in which the suit is brought and a citizen of another State, such citizen of another State, whether he be plaintiff or defendant, if he will make and file, in such State court, an affidavit, stating that he has reason to, and does believe, that from prejudice or local influence he will not be able to obtain justice in such State'court, may, at any time before the final hearing or trial of the suit, file a petition in the State court for the removal of the suit into the next Circuit Court of the United States,” &c. Under the various rulings which have been made under this statute, the appellant made and filed his affidavit in time, and in the matter of giving bond, conformed to all the statute required, if the affidavit be sufficient. — U. S. Rev. Stat. § 639; Ins. Co. v. Dunn, 17 Wallace, 214; Railroad Co. v. McKinley, 99 U. S. 147; Removal Cases, 100 U. S. 457; Bible Society v. Grove, 101 U. S. 610; Mining Co. v. Woods, 8 Amer. Rep. 799; W. U. Tel. Co. v. Dickinson, 13 Ib. 295; N. Y. Warehouse Co. v. Loomis, 23 Ib. 272. There is, however, a fatal defect in the petition and affidavit for removal, which is not supplied or remedied by any part of the record on file at the time the application was made and overruled. It sufficiently shows that Elliott, the petitioner, was a resident of the State of Georgia. It fails to show that Stocks & Bro., or either of them, was a resident of the State of Alabama. The Circuit Court did not err in overruling the motion for removal.

It was necessary for plaintiffs to prove, in the trial of this case, that the property in controversy belonged to the defendants in attachment, and to 'disprove, if necessary, any asserted or assumed right in McElwain to convey it. Elliott’s claim and right rested alone on McElwain’s conveyance, and any legal testimony offered tending to disprove his authority to execute the trusr deed, could not be ground of error. The title to the iron-works property, real and personal, appears to have been, at one time, in the Cornwall Iron Works Company. It was allowable to plaintiffs to prove that fact, and to trace the title and ownership through its various stages, down to the defendants in attachment. It was also permissible to prove the nature of McElwain’s possession, and, by doing so, to disprove his authority to make a trust deed, assigning the property, and the products of the Iron Works. Each and all of the documents offered in evidence in this cause, tended to show either the ownership of the property in the defendants in attachment, or the nature and extent of McElwain’s possession, and power over the property.

There were, at least, two important questions^ which were necessarily and prominently raised by the issue in this cause. First. Whether there was a bona fide debt, and the amount of it, to uphold the deed in trust from McElwain to Elliott, trustee. Second. Whether McElwain had any, and what a.uthority to make that conveyance ? In considering these questions, we must ignore all extraneous claims and interests. If the Tredegar Iron works, or Smith, or Foreche, trustees, have any claim to the property in controversy, it is not shown in this record, and, in fact, could not have been, for they are strangers to the record. Both the plaintiffs in attachment, Stocks & Bro., and the claimant, Elliott, rest their respective claims on the original ownership of McElwain, and the other defendants in attachment. Stocks and brother claim as attaching creditors of the former defendants in attachment; and Elliott claims as trustee under the trust deed made by McElwain to him in trust for the benefit of Printup Bros. & Co. So that neither party can derive any benefit in this issue from any claim of the Tredegar IronWorks, or its trustees may assert. The plaintiffs, to maintain their suit, must establish the ownership of defendants in attachment, when the attachment was levied. The claimant, to succeed, must show McElwain’s right to convey, and actual conveyance by him, before the attachment was levied, and the existence of a debt unsatisfied, secured by the trust deed. Any legal evidence, tending to prove either of these propositions, was admissible. It will not do to say, in reply to this, that the documentary evidence showed McElwain was without authority to bind the other defendants. He was one of the defendants himself, claimed to be part owner of the property, and whether or not he could convey his own interest in the property described in the trust deed, it would, perhaps, be improper for us to determine in the present state of this record.

The question raised on the admissibility of secondary evidence, of the contents of the written power under which McCullough executed the contract for Marshall, will not, probably, arise again, should this case return to the Circuit Court. Coming up as the question does, with proof before the court, that the power of attorney was in the State of Georgia, beyond the jurisdiction of the court, this authorized secondary evidence of its contents. — 1 Whar. Ev. § 130, and note 6; 1 Greenl. Ev. § 558; Shorter v. Sheppard, 33 Ala. 648; Scott v. Rivers, 1 St. & Por. 19.

In suppressing the answer of the witness, Printup, to the 6th interrogatory in chief, and to the first and third cross-interrogatories, the Circuit Court erred. They were reasonably responsive and explanatory of the subject called for in the interrogatories, and tended to prove the existence of the debt on wbicb Elliott’s claim was founded. That being a necessary part of the issue formed, we are unable to say what influence such testimony might have exerted.

Many objections were urged to answers of the witness McCullough. We think none of them are well taken. They were but the statement of collective facts, which, as a rule, witnesses may depose to. If the claimant desired to know the foundation on which the witness rested his conclusions of fact, he should have interrogated him. on that subject. S. N. Railroad v. McLendon, 63 Ala. 266.

The judgment of the Circuit Court is reversed, and the cause remanded.