9 Nev. 134 | Nev. | 1874
By the Court,
This is an action brought by the receiver of the Eirst National Bank of Nevada against Lewis Cook, John A. Cook and Isaac Cook, comprising the firm of Cook Brothers, upon two promissory notes of the aggregate value- of six thousand five hundred and eighty-seven $0 dollars and interest, given in the partnership name to the bank. John A. and Isaac Cook entered their appearance and answered for themselves only. • Service of summons was not made upon Lewis Cook. The answer alleges that the firm name was used by Lewis Cook in the purchase of certain merchandise and real estate for his individual benefit from one W. D. Ivers and the firm of Bruckman & Ivers. These parties, it is charged, were largely indebted to the plaintiff; and the notes in controversy were given to it in settlement thereof. It is also alleged that the officers of the bank had full knowledge of the transaction, and colluded and conspired
It appears that the firm of Cook Brothers were engaged in mercantile business at Hamilton, Nevada. Neither John A. nor Isaac Cook were residents of this State, and the management of the partnership business was confided to Lewis Cook. While thus conducting it and in the absence of his partners these notes were given. The action was brought in the District Court of the Eighth Judicial District, and after two mis-trials was transferred, by stipulation, to the Ninth Judicial District Court. The plaintiff recovered a judgment for the full amount prayed. From the judgment and an oi’der denying'a new trial this appeal is taken.
Before the trial in the State district court a motion was made to remove the cause to the circuit court of the United . States, and in support thereof the following petition and affidavit were filed :
“ [Title and venue.]
“ To the Honorable District Court of the Eighth Judicial District of the State of Nevada, Co.unty of White Pine.
“The petition of John A. Cook and Isaac Cook, the defendants served andN appearing in the above entitled action, respectfully represent: that the above cause was brought and is now pending in the said district court; that at the time the same was brought said plaintiff was and still is a resident and citizen of the State of Nevada, and the said defendants John A. Cook and Isaac Cook were and still are residents of the state of. California; that the defendant Isaac Cook was at the time of bringing said suit and still is a resident and citizen of the state of California; that at the time of bringing said suit the defendant John A. Cook was and still is an alien, born without the United States, and has never been naturalized as a citizen thereof: and that the defendant Lewis Cook has never been served nor appeared in*141 this action and is a non-resident of the State of Nevada, and not a citizen thereof; that the amount in controversy exceeds the sum of five hundred dollars, exclusive of costs; that your petitioners have made and herewith file the affidavit of John A. Cook, stating that they have reason to believe and do believe that from local prejudice and influence they will be unable to obtain justice in this Honorable Court. And your petitioners herewith offer surety that they will enter into the circuit court of the United States for the district on the first day of its session and the term next ensuing certified copies of all process, pleadings, depositions, testimony and other proceedings in said cause, and will appear therein and litigate the controversy commenced hereby. Wherefore your petitioners pray that in pursuance of the acts of Congress of the United States, in such cases made and provided, that said suit may be removed by the order of this Honorable Court into the next circuit court of the United States to be held within and for the District of Nevada, and that this Honorable Court proceed no further as to the defendants appearing herein, nor either of them.”
The petition was signed by the attorney of the answering defendants and verified by the affidavit of John A. Cook. It is accompanied by a further affidavit of John A. Cook alleging his alienage; that Isaac Cook is a citizen'of the state of California; that the amount in controversy exceeds the sum of five hundred dollars, exclusive of costs, and “that said defendants have reason to believe and do believe that from prejudice and local influence the defendants will not be able to obtain justice in the said State court.” The requisite surety for entering certified copies of all process, etc., in the United States circuit court was also offered. The district court refused to remove the cause, and its ruling is assigned as error.
The acts of Congress conferring the right of removal of causes from state to federal courts, by reason of the citizen
Under section twelve of the judiciary act it was held in equity cases where some of the parties were and others were not liable to be sued in the circuit court of the United States, the proper parties could remove the cause as to themselves in eases where a distinct and separate interest vested and substantial justice could be done without affecting their co-defendants. A different rule, however, prevailed at law, and unless all of the defendants joined in the application for removal, and all were citizens of some other state or states, the application was denied. The evident purpose of the act of July 27, 1866, was to relieve foreign defendants from their disability to remove suits when joined with citizen defendants in cases where a final determination of the controversy could be had without the presence of their co-defendants, who desired to remain in the state court or of whom the circuit court of the United States could not have jurisdiction. The act provides, “that if in any suit already commenced, .or that may hereafter be commenced, in any state court against an alien, or by a citizen of the state in which the suit is brought against a citizen of another state, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court, a citizen of the state in which
The act of March 2, 3 867, provides that in a suit brought in a 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, and the amount in dispute exceeds the sum of five hundred dollars, exclusive of costs, such citizen of another state, whether he be plaintiff or defendant, if he will file an affidavit stating that he has reason to believe. and does believe that from prejudice or local influence he will not be able to obtain justice in such state court and comply with other statutory requirements the case shall be removed to the United States circuit court. This act is amendatory of that of 1866. It extends the right of removal to the plaintiff as well as the defendant when from prejudice or local influence either party reasonably believes that he cannot obtain justice in the state court. The phraseology of the statute excludes suits to which an alien may be a party.
Section twelve of the judiciary act'and the acts of 1866 and 1867 being in pari materia must be construed together'.
It is urged by respondent in justification of the ruling of the district court upon defendants’ motion for removal that as the Eirst National Bank of Nevada was incorporated under an act of the congress of the United States it is a citizen of the United States, and cannot be treated as a citizen of this State for jurisdictional purposes. This question was thoroughly investigated by Judge Blatchford in the case of the Manufacturers’ National Bank v. Baack, reported in 2 Abb, U. S. Reports, 232. - The various provisions, in respect to the "location” of banking associations
Misconduct of the jury is also assigned as a reason why a new trial should have been granted. The misconduct consisted, in part, of the receipt by members of the jury of communications intended to influence their deliberations from persons without the jury-room. The fact of the receipt of the notes was properly reported to the district court by the foreman of the jury and in its presence upon delivering the verdict. One of these communications, addressed to a juryman, was preserved and is set forth in the record. It reads:- “I want you to do all you can for defendants and come to a decision. Frank. ”• The others, presumably of the same character, were destroyed. So flagrant an attempt to corrupt the administration of justice deserves the severest censure. It became the duty of the court upon receiving the information to promptly investigate the charges and to check such practices by exemplary punishment of the guilty parties.
Further misconduct is shown by the uncontradicted affidavit of John A. Cook, wherein he says “that when the verdict of the jury was returned into the court-room on the morning of the 5th of June one of the jurors was intoxicated.” In some of the states of this Union the use of spirituous liquors by the jury without the permission of the court will avoid the verdict, but in this and other states the rule has been so far modified that the moderate use of liquors unless furnished by the prevailing party does not
The remaining errors to which our attention has been directed by counsel are:
. Eirst. The refusal of the court to admit in evidence the deposition of Isaac Cook, to the effect that himself and John A. Cook, of the -firm of Cook Brothers, allowed their partner rent for the store purchased of Ivers. The plaintiff had shown that the real estate for which, in part, the notes in suit were given, was used as a store by the defendants subsequent to its conveyance to Lewis Cook. If this evidence was admissible, the defendants Isaac and John A. Cook were entitled to explain their relation to the property.
Second. Allowing the fifteenth instruction asked by the plaintiff. It reads: “ The jury are instructed that, if by reason of the transaction that induced the" execution of the notes sued upon in this action, any benefit accrued'to the defendants, or any loss or disadvantage resulted to the Eirst National Bank of Nevada, then there was a sufficient consideration for said notes to maintain this action.”
Judgment reversed and cause remanded for new trial.