brought suits to recover school taxes which they had paid in the past. The Supreme Court of Pennsylvania, in sustaining the lower court's ruling that the taxing sections of the School Code were unconstitutional, at the same time held that taxyers who had paid the illegally imposed taxes for prior years could not recover the sums paid. Said the Supreme Court (328 Pa. page 243, 195 A. page 100, 113 A.L.R. 1401): "It has been brought to our attention that the decision rendered by the court below has resulted in the institution of suits by taxpayers to recover the school taxes which they have paid in the past and which were levied by the school board illegally under the unconstitutional statutory provision. This court has uniformly adhered to the well-established rule that 'money voluntarily paid on a claim of right, where there has been no mistake of fact, cannot be recovered back on the ground that the party supposed he was bound in law to pay it when in truth he was not.' Union Ins. Co. v. City of Allegheny, 101 Pa. 250, 255."
That money voluntarily paid under a mistake of law where there has been no mistake of fact cannot be recovered was held in Gulf Refining Co. v. City of Philadelphia, D.C., 31 F.Supp. 587.
The above discussion is not to be considered as a determination of the issue of restitution involved here; it is intended only to demonstrate the separateness of the actions before the State court.
The question is not before me as to whether or not the original action was removable, since the motion to remand embraces only the restitution proceeding. It is well settled that a cause not removable when commenced may become removable by the voluntary act of the plaintiff, such as by amending his pleadings so as to change the nature of the cause of action: Fritzlen v. Boatmen's Bank, 212 U.S. 364, 29 S. Ct. 366, 53 L. Ed. 551. Moreover, the plaintiff cannot, by joining several causes of action under State statutes or State court rules, estop the defendant from removing an action to the federal courts: Stewart v. Nebraska Tire & Rubber Co., 8 Cir., 39 F.2d 309 (certiorari denied 282 U.S. 840, 51 S. Ct. 21, 75 L. Ed. 746); Young v. Southern Pac. Co., 2 Cir., 15 F.2d 280.
The single question remains as to whether, under the comity rule, this court should not relegate the entire proceeding to the State court. While it is true that it might be more convenient to have the entire controversy, both as to the right of future dividends and the restitution of past dividends, determined by the one State court, the respondent F.D.I.C. has asserted a right granted to it under the Constitution and the Acts of Congress, which right it cannot be denied. The decision of the Supreme Court of the United States, in Commonwealth Trust Co. of Pittsburgh, et al. v. Bradford, Receiver, supra, is dispositive of the issue of comity. In that case the receiver of a national bank relinquished control of a mortgage pool and consented to the appointment of a substituted trustee by the Orphans' Court of Pennsylvania. The substituted trustee refused to make distribution to the national bank receiver, and the latter instituted proceedings in the federal courts against the substituted trustee of the pool for an adjudication of his rights. Ruling that the property in the possession of a trustee is not in custodia legis as is property in the possession of a receiver, the Supreme Court said (297 U.S. pages 618, 619, 620, 56 S. Ct. page 601, 80 L. Ed. 920):
"The original bill revealed that the receiver had been denied participation as a cestui que trust in the assets held by petitioner trust company, and asked an adjudication of his rights therein. He did not seek direct interference with possession or control of the assets; he prayed that his right to partake thereof be determined. The claim was an equitable one, within the ordinary jurisdiction of the chancellor. 'In all cases in which an action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a court of equity is undoubted. It is the appropriate tribunal.' Fowle v. Lawrason's Executor, 5 Pet. 495, 503, 8 L. Ed. 204; Clews v. Jamieson, 182 U.S. 461, 479, 480, 21 S. Ct. 845, 45 L. Ed. 1183; Alexander v. Hillman, 296 U.S. 222, 56 S. Ct. 204, 80 L. Ed. 192.
"Jurisdiction having having been properly invoked, it became the duty of the trial court to determine the issues, unless required by rules based on comity to relegate the complainant to the State court. This may not be done except in special and peculiar circumstances not revealed, we think, by the present record. McClellan v. Carland, 217 U.S. 268, 281, 30 S. Ct. 501, 504, 54 L. Ed. 762, held:
"'It therefore appeared upon the record presented to the circuit court of appeals that the circuit court had practically abandoned its jurisdiction over a case of which it had cognizance, and turned the matter over for adjudication to the state court. This it has been steadily held, a Federal court may not do. Chicot County v. Sherwood, 148 U.S. 529, 534, 13 S. Ct. 695, 37 L. Ed. 546, 548.' See, also, Kline v. Burke Construction Co., 260 U.S. 226, 234, 43 S. Ct. 79, 67 L. Ed. 226, 24 A.L.R. 1077.
"The trust here involved was created by The Bank's voluntary action, not by the orphans' court. Whatever control the latter possessed resulted solely from appointment of the successor trustee and, for present purposes did not materially differ from that exercised by probate courts over such fiduciaries as guardians, administrators, executors, etc. The jurisdiction of federal courts to entertain suits against the latter is clear, when instituted in order to determine the validity of claims against the estate or claimants' interests therein. Such proceedings are not in rem; they seek only to establish rights; judgments therein do not deal with the property and order distribution; they adjudicate questions wich precede distribution. Byers v. McAuley, 149 U.S. 608, 620, 13 S. Ct. 906, 37 L. Ed. 867; Security Trust Co. v. Black River National Bank, 187 U.S. 211, 227, 23 S. Ct. 52, 47 L. Ed. 147; Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 43, 30 S. Ct. 10, 54 L. Ed. 80; Riehle v. Margolies, 279 U.S. 218, 223, 49 S. Ct. 310, 73 L. Ed. 669; Harrison v. Moncravie [10 Cir.], 264 F. 776, 799. Property in its [the trustee's] possession is not in custodia legis as in case of receivers. Hinkley v. Art Students' League, [4 Cir.], 37 F.2d 225, 226; Appeal of Hall, 112 Pa. 42, 54, 3 A. 783; Strouse v. Lawrence, 160 Pa. 421, 425, 28 A. 930; Goodwin v. Colwell, 213 Pa. 614, 616, 63 A. 363; Nevitt v. Woodburn, 190 Ill. 283, 289, 60 N.E. 500.
"The trial court properly exercised the jurisdiction which it acquired. The doctrine approved in Pennsylvania v. Williams [294 U.S. 176, 55 S. Ct. 380, 79 L. Ed. 841, 96 A.L.R. 1166], and Penn General Casualty Co. v. Pennsylvania, supra, [294 U.S. 189, 55 S. Ct. 386, 79 L. Ed. 850], is not applicable. In each of those cases we found conflict between the federal court and authorities of the state concerning liquidation of the business and assets of an insolvent local corporation. The question was whether, under the peculiar circumstances disclosed, the federal court should retain jurisdiction; its power generally to render judgment in personam against fiduciaries appointed by state courts was expressly recognized. Here there are no extraordinary circumstances. As contemplated by Congress the receiver sought an adjudication of his rights. The final decree produced no interference with the trustee's possession, nor with the power of the orphans' court to order distribution of assets. The receiver's privilege to participate has been declared; only a judgment in personam was rendered.
"Congress has empowered receivers of national banks to sue in federal courts; the obvious importance of permitting them freely to do so cannot be disregarded." (Emphasis supplied.)
To the same effect was General Baking Co. v. Harr, Secretary of Banking of Pennsylvania et al., 300 U.S. 433, 57 S. Ct. 540, 81 L. Ed. 730.
It is clear in this case that no effort is being made by the respondent F.D.I.C. to affect the control of the State court over the trust res, and the determination of the restitution action is not in any way dependent upon the possession of the res.
Contention was made by the movants in this case that the respondent F.D. I.C. was precluded from removing this cause to the federal court by reason of having participated in the proceedings in the State court with respect to future dividends. This contention is without merit. The fact that the respondent has submitted to the jurisdiction of the State court the issue of its right to future dividends did not prevent it from removing to the federal court the action against it to recover past dividends already received, where it took prompt action as soon as the new issue was presented, as was done by the respondent F.D.I.C. in the instant proceeding.
I am in agreement with the contention of the respondent that the question here is closely analogous to the question of whether by filing a claim in bankruptcy proceedings, a claimant subjects himself to summary jurisdiction of the bankruptcy court as to property held by him adversely to the bankrupt estate. The courts have consistently held that summary jurisdiction cannot be predicated upon such action. As was stated in the case of In re Vadner, 9 Cir., 17 F.2d 721, 722: "As to the contention that respondent's testatrix made a general appearance in the case, and presented claims for allowance, and opposed other claims, it need only to be said that appearance for such purpose is not a submission for adjudication of the subject-matter of this proceeding. Pickens v. Roy, 187 U.S. 177, 180, 23 S. Ct. 78, 47 L. Ed. 128."
Again, in Thalhimer v. Florance, 4 Cir., 58 F.2d 23, 26, the court stated: "The mere filing against a bankrupt estate of a claim partly secured by a lien upon property in the possession of the claimant does not signify his consent to a determination of his right to the security by summary proceeding in the bankruptcy court.Such an action does manifest a desire to share in the assets of the estate with respect to so much of the claim as is unsecured, and it assumes that the creditor's right to the security will be respected; but it does not evidence an intent to submit the title to the security, if denied, to the determination of the court. * * *"
In City National Bank of Wichita Falls v. Wichita Royalty Co., D.C., 18 F. Supp. 609, a national bank began a suit in a State court for the appointment of a receiver for a corporation. In was held that upon filing of a cross-claim the bank could remove to the federal court. The decision of the District Court was affirmed in 5 Cir., 95 F.2d 671.
Similarly, in Henderson v. Midwest Refining Co., 10 Cir., 43 F.2d 23, the court point out that submission to the jurisdiction of the State court on matters set forth in an original bill of complaint did not operate to prevent removal to the federal court of new matters incorporated in an amended bill of complaint.
Finally, there is no question in this case that the United States courts have original jurisdiction and, therefore, likewise have jurisdiction by removal, in matters affecting the F.D.I.C., under the Act of June 16, 1933, which created it. The Act, 12 U.S.C.A. § 264j(4), provides: "* * * All suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States * * *."
For the reasons above stated, the motion to remand is denied.
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