95 F. 223 | U.S. Circuit Court for the District of Nebraska | 1899
This action was originally brought in the district court of Seward county, Neb., and on the 29th of March, 1895, the defendants filed a petition for a removal of the case into this court on the ground that the cause of action was based upon or grew out of the laws of the United States, in that the defendants were proceeded against as officers and directors of the Capital National Bank for derelictions in their duty in that capacity. The state court refused to grant an order of removal, and thereupon the defendants procured a transcript of the case, and filed the same in this court, wherein a mol ion to remand was made by plaintiff; and, upon consideration, was by this court sustained. Bailey v. Mosher, 74 Fed. 15.
The principal ground for this ruling was that the plaintiff’s petition counted on the common-law liability of the defendants, and not upon a violation of any duty imposed by the national banking act. On May 3, 1897, the plaintiff filed an amended petition in the state court, in which it is set forth that the defendants were the officers and directors of the Capital National Bank; that, as such directors and officers of said bank, it became and was the duty of the defendants, and each of them, under the law as well as the by-laws of the bank, to actively and actually manage and superintend the business thereof; and the petition then sets forth the particulars in which it is claimed that the defendants violated their duty, and thereby caused injury to the plaintiff. To this amended petition the defendants filed answers, wherein, among other matters, they averred that the state court was without jurisdiction, in that the case had been removed into the federal court. On the 6th day of March, 1899, the plaintiff obtained leave to amend the amended petition by interlineation thereon, the defend
When the case was first before the court, the defendants then strenuously urged that, in fact, the case was one based upon an alleged violation of the duties imposed upon the defendant by the national banking act; but the court held that, as the petition was then worded, it appeared to be based upon the common law, and not upon an alleged violation of a duty imposed by the national banking act, and therefore the case must be remanded to the state court, as the parties plaintiff and defendant were citizens of the same state. By the amendments subsequently filed to his petition in the state court, it was made clearly to appear that in fact the plaintiff did base his action upon the provisions of the banking act, and, as soon as the plaintiff’s pleadings made this fact manifest, it was then made to appear that the case was one removable to this court, as it involved a sum in excess of $2,000, and arose under the laws of the United States. The case did not become removable until the plaintiff, by his amendment of the petition, had based his right of action on the act of congress; and it is now settled by the ruling of the supreme court in Powers v. Railway Co., 169 U. S. 92, 18 Sup. Ct. 264, that the right of removal in cases of this character is not lost because of the lapse of time since the filing of the original petition, but may be availed of whenever the plaintiff, by amending his petition, creates the right of removal by changing his action from one based upon the common law to one based upon, or arising under, the provisions of some act of congress. The record shows that when the plaintiff filed his first amended petition, which for the first time disclosed the fact that plaintiff purposed to rely upon alleged violations of the duties imposed by the banking act upon the defendants as officers and directors of a national bank, the defendants in their answer called the attention of the state court to the fact that its jurisdiction had been terminated by operation of the petition for removal, setting forth the facts with respect thereto, and,
The facts appearing on the face of the record justify the conclusion that the plaintiff framed (he original petition in such form as to prevent a removal of the casi' into the federal court on the ground that it was not made to appear that Ins action was based upon a law of the United Rtates, but, after the case had been remanded for that reason, he amended his petition, and by the amendment; clearly showed that in fact he based his right of action upon the duties imposed by the national banking act upon the officers and directors of national banks: thus showing that, in truth, the case was one removable into the federal court. Having, by bis own conduct, caused the delay in the enforcement of the right: of removal, it is not open to him to now complain of the fact that this court: has delayed action in taking jurisdiction over the case; for, as is said" by the supreme court in Powers v. Railway Co., 169 U. S. 92-100, 18 Sup. Ct. 267:
“The reasonable construction of the act of congress, and the only one which will prevent the right of removal, to which the statute declares the party to be entitled, from being defeated by circumstances wholly beyond bis control, is to hold that the incidental provisions as to the time must, when necessary to carry out the purpose of the statute, yield to the principal enactment as to the right.”
