Bixby v. Blair & Co.

Rothrock, J. ■i. practice: appeal, waiv I. Appellants contend that the court erred 'in overruling the motion for substitution as it was originally presented. The application having been made by ^ sheriff and by the parties in whose favor the writ of attachment issued, and a bond for costs having been :given, it may be this was all that was required under section 257é of the Code. But this we need not determine, because .although the defendants excepted to the rulings, they did not .stand thereon, but amended the application by giving bond not only for costs, but for damages, and thereupon the order ■of substitution was made. Having succeeded in procuring what they desired in the way of substitution, the defendants ■cannot now complain that' terms were imposed upon them not ■warranted by the statute. A party cannot review an adverse ¡ruling on a demurrer or motion after pleading over, and it ■seems to us the defendants are in about the same position on ¡this question. [419] 2._, action flfsnRsutul fendants. II. Tbe plaintiff contends that the final'ruling on the application for substitution was erroneous, because no motion whatever was made until after the defendant Farr had answered. It is argued that under sections 2572, 2573 and 2574 of the Code, construing them together, all applications for substitution must be made before answer. It is true that under the first named section, where * a party defendant to an “ action upon contract for the recovery of personal property ” makes an affidavit before answer that some third party makes a claim to the subject of the action, an order may be made requiring such third person to appear and maintain or relinquish his claim, and if upon notice he fails to appear, the court may declare him barred of all claim in respect to the subject of the action against the defendant therein. Section 2573 makes the provisions of section 2572 applicable to an action against a sheriff for the recovery of personal property taken by him under process. These sections are for the protection of nominal defendants against third persons making claims to the property. But section 2574 seems to be an independent provision. It j>rovides for a joint application by the sheriff and the party in whose favor the process issued, and is not limited as to the time within which it must be made. Indeed there is no reason for such limitation, for if the real party in interest joins in the application, he is bound, by whatever steps the nominal defendant has theretofore taken in the action, and by uniting in the application he thereby releases the nominal defendant from any liability to him. In other words, he takes up the defense where the sheriff leaves it, and is not necessarily entitled to delay. 3,_: remoyaioi causes-III. Ve are next to inquire whether the court erred in overruling the petition for the removal of the cause to the Circuit Court of the United States. Counsel for the plaintiff does not by his argument question the sufficiency of the bond and affidavit. But it is claimed that the petition for removal is defective because it states that [420] the defendants are all residents of the State of Illinois, and contains no averment that they were such residents at the time of the commencement of the action. The petition is under sub-division 3, of section 639, of the Bevised Statutes of the United States, being what is called the “local prejudice” act. The affidavit, in addition to setting forth the prejudice and local influence as required by the statute, stated that the defendants “are and were at the commencement of this suit citizens and residents «f the State of Illinois.” If this affidavit was proper to be considered in connection with the petition, then there was a showing made that the defendants were citizens of Illinois at the commencement of the action, if such showing was necessary, a point which in our opinion we need not discuss. In Bemoval Cases, 100 U. S., 474, it is held that not only the petition for removal, but the whole record, is to be examined; and in Yulee v. Vose, 99 U. S., 539 (545), it is said: “ The petition and affidavits which accompanied it are to be taken together as a part of the same instrument. They are also to be considered in connection with the other parts of the record to which they belong.” Counsel for appellee concedes that the last cited case might apply if the affidavit had been made of record by a bill of exceptions. We think it is as much a part of the record as the petition, or bond, or any other paper required by law to be filed in the case, and that no bill of exceptions was necessary. In our opinion the court below should have taken the whole record and showing for a removal into consideration, and ordered the change of forum, especially as the alleged residence of the defendants was in no way controverted. The caiise must be affirmed on plaintiff’s appeal, and upon defendant’s appeal it must be Reversed. '