37 F. 504 | U.S. Circuit Court for the District of Eastern Tennessee | 1889
The plaintiff began an action in the state court for personal injuries against the defendant. The cause was removed to this court,
There is no question but that the application for removal came after the term of the court at which by the state law and rule of the court the defendant was required to answer or plead to the declaration or complaint of the plaintiff. Up to the close of the term at which the cause could first have been tried, the defendant had no right or power to remove the causo for diverse citizenship, because the plaintiff did not claim more than $2,000, The question is, can a plaintiff prevent, under the law, the jurisdiction of the circuit court of the United States by commencing his suit, claiming $2,000 or less, joining issue at the return term with his adversaiy, and at the trial' term, or some later period, amend his writ by increasing his claim to a sum within the jurisdiction of the federal court? The plaintiff is a citizen of this state; the defendant, of Ohio. The language of the act of 1887 is clear in regard to the time when the removal must be made for this character of citizenship. “He may make and file a petition in such suit in such state court at the time or any time before the defendant is required by the laws of the state or the rule of the state
But suppose the position taken in regard to the removal ordered by the state court be wrong, how stands the case with regard to the application made to this court for removal on account of local prejudice or influence? In Lookout Mountain Co. v. Houston, 32 Fed. Rep. 711, in which there was an application for removal because of local prejudice or influence, it was held that an application in such case must be filed at the return-term of the cause, or before. If that be correct, the application in this suit would be in time, if the positions assumed upon the first ground of removal be tenable. The weight of opinion, however, so far as cases have been adjudged, is that such removal may be made at any time before the final hearing.of the case. Judge Deady, an excellent
In passing, it may be observed that the words “local prejudice or influence” are used. They are connected disjunctively. If there be local prejudice, the cause may be removed, or if no local prejudice exists, and there bo local influence, so powerful and operative as to prevent the defendant from obtaining justice, ho may remove. If there be prejudice against the defendant, or if the influence and power of the plaintiff or any other local influence dominate the public mind at the place where the suit is instituted, so that he cannot have justice, the cause may be removed.
The fourth clause of section 2, act of March 3, 1887, is wide-reaching in its changes of the law previously existing. It enlarges its scope in almost every direction but one. It does not allow a plaintiff to remove his suit. It embraces all controversies between citizens of different states without regard to amount. Jt permits or authorizes removal, though some of the defendants may be residents, or citizens rather, of the state in which the plaintiff resides. Any defendant, being a non-resident, may remove the suit. “It extends to all controversies, without regard to amount; to all suits, whether they can bo estimated in dollars and cents.” Speer, Rem. Causes, 62; Fales v. Railroad, 32 Fed. Rep. 673; Whelan v. Railroad, Co., supra. The act under consideration provides for the removal of the cause by this court, instead of by the state court. It must be made to appear to this court that the cause is removable, and it removes it. How it shall be made to appear that it is removable is, to some extent, an unsettled question. In Short v. Railway, 33 Fed. Rep. 114, Judge Bkewek hold that, a petition and affidavit such as have been filed by the defendant in this case are not such steps as will authorize a removal; that it must appear to the court in sonic method that may enable it to determine the fact as to whether there is prejudice. If this be a correct decision of the law, this (¡ase should not be removed. The decision of Judge Jackson in the Whelan Case, supra, however, makes a different determination, and his conclusions have been reached after a wide range of examination, and after deliberate and careful consideration, and it has already been announced that this opinion will be followed in this case. Judge Jackson says:
“In conferring upon the circuit court of the United States the authority to act upon tlie application for removal of suits from state courts, congress certainly never intended to make the question as to the existence or non-existence of prejudice on- local influence, which would prevent a non-resident citi*508 zen defendant from obtaining justice in the local courts, a jurisdictional fact, such as would entitle the side opposing the removal to dispute its truth and put the matter in issue for formal trial. ” 35 Fed. Rep. 862.
In the same connection it is held that a petition and affidavit such as have been made in this case made it appear that the cause should be removed. This decision on this point concurs with that of Judge Deady in Fisk v. Henarie, 32 Fed. Rep. 417-421, and is sustained in Speer, Rem. Causes, 63. Judge Speer in his work on Removals under the act of March 3, 1887, page 62, says:
“It is quite possible that in this far reaching statute congress intended to correct the mischief pointed out in Kurtz v. Moffitt, 115 U. S. 498, 6 Sup. Ct. Rep. 148. There it was held that before the suit could be removed it must have the money value fixed by the statute. Now, if local prejudice is aground of removal from the local court in any controversy between citizens of different states, there is no reason why it should not have the same effect in all controversies. Undeniably there is often much local excitement and prejudice on the trial of proceedings for divorce, habeas corpus, or other suits where the matter in dispute cannot be estimated and ascertained in money. The federal courts are not courts where non-residents have an undue advantage, and it is no injustice to residents to require them to litigate therein their controversies with citizens of other states.”
If this suit has not already been removed to this court by the order made by the state court, it should be removed under the application to this court. The' order for removal is made, and plaintiff’s motion to remand is overruled.