| U.S. Circuit Court for the District of Iowa | Jul 1, 1876
briefly stated his view.s, in substance, as follows: It is probable that, as the law stood prior to the passage of the act of March 3, 1S75, the fair effect or construction of the Sewing Machine Cases, 18 Wall. [85 U. S.] 553, would require the circuit court to remand the case to the state court. In saying this, however, and in what I shall say of the effect of the act of ISIS' on the question, it is to be borne in mind that I did not concur in the decision of the case in 18 Wallace [85 U. S.], and have never believed it was sound law. How far this may affect my present opinion, I cannot say, though I commence with the conviction, or concession, that if the statutes had remained as they were when that case was decided, it would govern the present case. The case, of the Sewing Machine Company was decided in the supreme court very largely on two propositions: First, that all legislation prior to the act of 1866 had provided that the defendants alone could remove who had been sued where they did not reside; and, secondly, that all the defendants must have this capacity by being non-residents of the state where the suit was brought. And it was argued that the act of 1867, which extended the right of removal to both plaintiff and defendant, and removed the bar of time, save that it must be before final trial or hearing, still required that all the plaintiffs or all the defendants must be non-residents, when the application for removal was made by either of these parties. And, because one of the defendants in that case was not a nonresident of Massachusetts, the application for removal by those who were, was held to be properly overruled.
Now, the whole theory of this case is overturned by the 2d section of the act of 1875 [18 Stat. 471]. The distinction between the plaintiffs and defendants as to the right of removal is abolished, and either party may apply for the removal, if done before or at the first term at which the case was triable-It is obvious that this case was removable under the act of 1875, without the aid of the act of 1867 [14 Stat. 558], if the first application had been made at the April term, j 1875. The last clause of the 2d section is-j also very significant, wherein it is declared I “when the controversy is wholly between i citizens of different states, and which can be i fully determined as between them, then ei- , ther one or more of the plaintiffs or defend- ! ants actually interested in such controversy may remove,” etc. I understand this controversy to be one of priority lien between citizens of different states, and to come within this clause.
If, then, the generality of the language of the act of 1867 was limited by the construction given to the act of 1789 and subsequent statutes, such limitation ought to cease after the act of 1875, which gives the more-enlarged right, which is in exact conformity to the spirit of the act of 1867. Motion denied.
See Arapahoe County v. Kansas Pacific R. Co. [Case No. 502.]