Kennedy v. Woolfolk

1 Tenn. 453 | Tenn. Sup. Ct. | 1809

Lead Opinion

[S. C., 3 Hayw. 195.] This was an application for a peremptory mandamus to the County Court of Robertson. The case was, as appeared from the record of the County Court, that the defendant took out a writ against the plaintiff. Upon this writ the sheriff returned non est inventus; a judicial attachment issued, which was levied on a tract of land. On the return of the attachment the defendant appeared and filed his petition stating that he was a citizen of another State, to wit, of Kentucky, c., and prayed that his cause might be removed to the Circuit Court of the United States agreeably to the act of Congress. The petition was rejected, upon which, and in order that the defendant should not obtain judgment against him, the plaintiff pleaded in abatement, that he was a citizen of another State, and had never been a citizen of this State.

It was urged by Grundy, in support of the application, that Kennedy had completely brought his case within the act of Congress in the court below, and was entitled of right to have his cause removed to the Federal Court. The circumstance of his pleading in abatement can make no difference, for he was forced to take that course to prevent judgment and execution. The petition filed in the County Court completely brings the plaintiff's case within the act of Congress. The petition was sworn to which seems to be the method contemplated by the Act of September, 1789, c. 20, § 12. Upon the truth of the petition being verified on oath, and the plaintiff here offering to give the security contemplated in the act, the County Court had no discretion, they ought to have taken the security, and sent the cause to the Federal Court. It would have been the same thing if suit had been brought in this court, and a petition filed and sworn to. This petition was filed at the appearance term, and it states that the plaintiff here was a citizen of Kentucky, and the defendant a citizen of this State, and that the matter in dispute exceeds the value of $500. All a court could require, in order to ascertain the truth of the facts stated in the petition, would be an affidavit; and then their duty would be entirely ministerial. After affidavit in the language of the act of Congress, "it then shall be the duty of the State Court to accept the surety, and proceed no further in the cause." The Constitution of the United States, and the laws made in pursuance of it, are the supreme laws of the land, and the act, in my apprehension, after the Court shall be satisfied by affidavit, requires of them the performance of ministerial duties; the taking of security and the sending of the cause to the Federal Court. Under these impressions, I am of opinion that a peremptory mandamus ought to issue, as every fact forming the necessary ground, appears from the record.¹

¹ 4 Hen. Mun. 173, accordant.

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Addendum

I am inclined to think that a mandamus is not the proper mode of proceeding. The court below did not act ministerially. They sat in a judicial capacity, and their judgment in this, as in other instances, must be examined in a regular course of law; if they erred, this court will correct it, and then send the cause to its proper tribunal. If necessary, however, he would further consider of it.