| U.S. Circuit Court for the Northern District of Georgia | Dec 26, 1890
(after stating the facts as above.) Under section 2423 of the Code of Georgia, a proceeding to probate a will in common form is a probate propeeding pure and simple, the probate and record not being conclusive upon any one interested in the estate adversely to the will, and, if afterwards set aside, not protecting the executor in any of his acts further than the payment of the debts of the estate. Under the same section, and sections 2424 and 2427 of the same Code, a proceeding to probate a will in solemn form is a proceeding inter partes to establish the will conclusively and as a muniment of title; and when, in such a proceeding, the heirs at law are brought in, and they contest the validity of the will and the capacity of the testator, an issue or controversy is formed or made which can be classified as a suit at law. The pleadings in the state courts in this case show such controversy between the parties. From them it clearly appears that the plaintiff, or propounder, a citizen of Georgia, is seeking to establish in his favor, and conclusively against the defendants or caveators, citizens of Pennsylvania and heirs at law of Mrs. Brodhead, the validity of Mrs. Brodhead’s will; the said defendants denying the capacity of Mrs. Brodhead to make a valid will, and specially denying tíre validity of the will propounded. The pleadings further show' that, dependent upon the controversy thus existing in the case, depends the ownership and title to property, not only in the state of Georgia, but in the state of Pennsylvania. From the statutes cited, and the record of the case as made up to the time of removal, it appears perfectly clear that the proceeding pending in the superior court of Floyd county, Ga., taken in connection with the removal statutes of the United States, was a suit in which there was a controversy removable by the defendants to the circuit court of the United States for the northern district of Georgia, upon compliance with the conditions prescribed in said removal statutes; and this, within the rule laid down by the supreme court in Gaines v. Fuentes, 92 U.S. 10" court="SCOTUS" date_filed="1876-03-20" href="https://app.midpage.ai/document/gaines-v-fuentes-89236?utm_source=webapp" opinion_id="89236">92 U. S. 10; Ellis v. Davis, 109 U.S. 485" court="SCOTUS" date_filed="1883-12-10" href="https://app.midpage.ai/document/ellis-v-davis-90959?utm_source=webapp" opinion_id="90959">109 U. S. 485, 3 Sup. Ct. Rep. 327. See, also, Boom Co. v. Patterson, 98 U. S.403; Hess v. Reynolds, 113 U. S. 75, 5 Sup. Ct. Rep. 377; Payne v. Hook, 7 Wall. 425" court="SCOTUS" date_filed="1869-04-12" href="https://app.midpage.ai/document/payne-v-hook-88024?utm_source=webapp" opinion_id="88024">7 Wall. 425; Justice Bradley’s dissenting opinion in Rosenbaum v. Bauer, 120 U. S. 461, 7 Sup. Ct. Rep. 633.
“In the nature oí things the trial of the ease is not any one, but the final one, — the one that stands as the thing accomplished in the case. Where a jury is discharged without a verdict the proceeding is properly known as a ‘ mistrial; ’ and where a verdict is set aside because it ought not to stand the result is the same, — the proceeding has miscarried, and the consequence is not a trial, but a mistrial; and in the case of removal from local prejudice or influence, there is a good reason for giving the non-resident party the right to make the application after a mistrial, for, as was said by Mr. Justice Milder in Hess v. Reynolds, 113 U. S. 75, 5 Sup. Ct. Rep. 377, the hostile local influence may not become known or developed at an earlier stage of the proceedings.’ ”
We agree with the opinion of Judge Deady, and merely add to the reasoning part of what was said by the chief justice in Yulee v. Vose, 99 U. S. 545, when considering the removal under the act of 1866, and
“In view of the fact that sometimes, in the progress of a cause, circumstances developed themselves which made such a transfer desirable, when at first it did not appear to be so, the right of removal in this class of cases was kept open until the trial or final hearing, instead of being closed after an entry of appearance, as was the rule under Che act of 1789. We think this gives such a party the right of removal at any time before trial, when the necessary citizenship of his co-defendants is found to exist, and a separation of bis interest in the controversy can be made. There is nothing in the act to manifest a contrary intention, and this construction does no more than give the party to whom this new privilege is granted an opportunity to avail himself of any circumstances that may appear in his favor previous to the time when he is called upon finally to act. ”
But the objection is specifically made in the present case that, although a cause may be removed for prejudice or local influence after a mistrial in the state court, it cannot be removed after there has been a trial in one state court, and an appeal taken therefrom to another. The jurisdictional act of 1887 says:
“Where a suit is now pending or may be hereafter brought in any state court in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, the defendant, being such citizen of another state, may remove said suit into the circuit court of the United States for the proper district, at any time before the trial thereof, ” etc.
This statute plainly reads that a suit pending for trial in the state court may be removed, if a proper case, before the trial. If it be true, as claimed, that the act of 1837 was passed for the purpose of restricting and limiting the jurisdiction of the United States courts, and therefore to be strictly construed, it does not follow that the courts should insist upon additional conditions relative to the right of removal. If the suit is pending in the state court, and the trial is yet to be had, and the right of removal from prejudice and local influence is not affected by any number of preliminary trials, not conclusive on parties, previously had in that court, why should the right of removal be affected by any number of preliminary and inconclusive trials many other state court from which the suit has been removed by the operation of the laws of the state? In Boom Co. v. Patterson, supra, a case removed under the act of 1875, where the petition for removal was required to be filed in the state court “before or at the time at which said cause can be first tried, and before the trial thereof,” the trial before commissioners (the appeal from whose decision constituted the pending suit) was held to be preliminary, and in the nature of an inquest; stress being laid on the fact that, under the laws of the state, on the appeal there was to be a trial by jury. In Hess v. Reynolds, supra, a case removed under section 689, Rev. St., on account of prejudice and local influence, and where the pending suit was an appeal from the decision of commissioners appointed by the probate court, Mr. Justice Miller, for the court, says:
“It is said, however, that the trial spoken of had taken place before the commissioners of Ionia county, to whom the case had been referred. But we do not look at that proceeding as a trial within the meaning of the statute. It*525 was merely a report, subject to be affirmed or rejected by the probate judge, and. by the express terms of the statute, subject to a right of appeal to a court in which a trial by jury could be had. The latter was the trial or final hearing of the suit which would conclude the right of removal, and, until such trial commenced, the right of removal under this provision remained.”
Here, again, stress was laid upon the tact that the original proceeding was by the statute subject to a right of appeal to a court in which a trial by jury could be had. In Pacific Railroad Removal Cases, 115 U.S. 1" court="SCOTUS" date_filed="1885-05-04" href="https://app.midpage.ai/document/union-pacific-railway-company-v-myers-2477913?utm_source=webapp" opinion_id="2477913">115 U. S. 1, 5 Sup. Ct. Rep. 1113, where one of the pending suits in the state courts held to be removable under the act of 1875 was an appeal from a trial before a mayor and jury, the case was held to bo controlled by Room Co. v. Patterson, supra, and that the said trial by the mayor and jury did not affect the right of removal. In the eases of Railway Co. v. Jones, 29 Fed. Rep. 193, and Mineral Range R. Co. v. Detroit & Lake Superior Copper Co., 25 Fed. Rep. 515, cited with approval in the ease of Searl v. School-Dist., 124 U.S. 197" court="SCOTUS" date_filed="1888-01-16" href="https://app.midpage.ai/document/searl-v-school-district-no-2-92113?utm_source=webapp" opinion_id="92113">124 U. S. 197, 8 Sup. Ct. Rep. 460, which was a similar case, it was held that proceedings for expropriation instituted before commissioners under special or general statutes of a state, for assessment of damages, were controversies rempvable under the federal statute to a proper circuit court of the United States; and that the removal could be properly made in the case pending before such commissioners, and before any appeal to another court. In Delaware Co. v. Diebold, Safe Co., 133 U.S. 473" court="SCOTUS" date_filed="1890-03-03" href="https://app.midpage.ai/document/delaware-county-commissioners-v-diebold-safe--lock-co-92684?utm_source=webapp" opinion_id="92684">133 U. S. 473, 10 Sup. Ct. Rep. 399, which was a case commenced, under the Indiana statute, against Delaware county, before the board of county commissioners, and after trial before said commissioners was appealed to the circuit court of the county, and thereafter removed by reason of prejudice and local influence to the circuit court of the United States, the case was held removable; the court using this language:
“It follows, according to the decisions of this court in analogous cases, that the trial in the circuit court of the county was • tho trial ’ of the case at any time before which it might be removed to the circuit court of the United .States under clause 3, § 639, Rev. St. citing Boom Co. v. Patterson; Hess v. Reynolds, supra; Railway Co. v. Kansas City, 115 U. S. 1, 5 Sup. Ct. Rep. 1113; and Searl v. School-Dist., supra.
From these adjudged cases, it seems clear that, while a proper controversy may be removed under the statutes of the United States as soon as properly made before any state tribunal, yet, where the time of removal under the statute is before the trial thereof, the removal is not too late if tho case is yet to be tried upon its merits before a state tribunal of either original or appellate jurisdiction; and, particularly, if such trial is to be a jury trial; and in this connection we may notice that Const. U. Amend. 7, provides “that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,” from which we think it a fair inference that the trial mentioned in the removal act refers to and was intended to mean the trial by jury secured by the constitution, and that while the defendant still has the right to challenge the array of jurors, it cannot be too late to remove the cause for prejudice and local influence. In the present case the whole case was carried to the superior court of Floyd county,
It is further objected, however, to the right of removal in this case, that the order of removal was obtained from the circuit court without notice to the parties, and upon affidavits which, it is alleged, are not true. In the ease of Cooper v. Railroad Co., 42 Fed. Rep. 697, this court held that—
“Since Act Cong. March 3, 1887, which provides for the removal of causes on the ground of local prejudice, does not prescribe any mode of procedure, a petition for removal, accompanied by an affidavit by a person authorized to make it, stating of his own knowledge the existence of prejudice and local influence, is sufficient to justify an order of removal; and where such an affidavit is presented the court will not permit the adverse party to traverse it, and will not hear evidence on the subject.”
Since that decision it has been the rule of this court. On the whole case presented on this motion to remand we are of opinion, for the reasons aforesaid, that the cause was properly removed from the state court to this court. The motion to remand is denied.
NbwmaN, J., concurs.