108 F. 897 | U.S. Circuit Court for the District of Eastern North Carolina | 1901
This is a motion to remand the cause to the slate court from which it has been removed. The plaintiff, L, R. Mayo, filed his summons against II. C. Dockery in the superior court of Beaufort county, N. C., on 15th May, 1900. The complaint was fled on the second day of the term of said court, 29th May, 1900. It alleges that on 20th April, 1900, the plaintiff was the owner of certain premises in the town of Washington, being a brick store, warehouse, and outbuildings, and of a large stock of goods, wares, and merchandise stored therein; "that on said 20th April, 1900, the defendant, by Ms servants, agents, and employés, unlawfully and with force broke and entered into said store and warehouse, and unlawfully took from plaintiff’s possession and carried away said stock,” etc., “and still unjustly detains the same from plaintiff, and prevents plaintiff from carrying on his lawful business in said store,” etc., “to his damage $10,000.” It prays judgment for that sum. The defendant appeared by his attorney, and was allowed 45 days within which to answer or demur. On June 6, 1900, the defendant presented his petition to the circuit court of the United Stales for the Eastern district of North Carolina, setting forth that this suit had been commenced against him; that he is and was for some time last past marshal of the United States for said district, and that the suit so commenced against Mm was on account of an act done by him under color of Ms office, — that is to say, under an order of the district court of the United States for his district, issued by the judge thereof, in the matter of Hoyt & Mitchell, bankrupts, commanding the seizure of the goods and property referred to in said suit. He prays that the said suit may be removed from the state court to the circuit court of the United
It is the duty of this court to remand a cause, if, at any time after its removal, it be made to appear that the suit does not involve a suit or controversy properly removable. Ayres v. Wiswall, 112 U. S. 187, 5 Sup. Ct. 90, 28 L. Ed. 693. In deciding upon this motion to remand, we must inquire, is this suit removable? and then, was it properly removed?
The action in the state court was between citizens of the same state. The complaint nowhere discloses the fact that the defendant is a marshal of the United States, or that the act complained of was done in his official capacity or under the color of his office. The act of 1887, corrected in 1888 (25 Stat. 433), has made an important change in the removal of causes from the state courts. Previous to that, under the act of 1875 (18 Stat. 470), if a defendant, sued in the state court, should, in his petition to that court, show that the suit involves a federal question, the case can be removed, although this fact appear for the first time, the pleadings of the plaintiff ignoring that fact. A case illustrating this is Bock v. Perkins, 139 U. S. 630, 11 Sup. Ct. 677, 35 L. Ed. 314, decided at October term, 1890. But, under the act of 1887-88, no case can be removed from the state court into this court, unless the federal question appears in the pleadings of the plaintiff. Its omission cannot be aided by the averments of the petition. This matter is fully discussed, and the change in the provisions of the act ef 1875, made by the act of 1887, clearly and distinctly shown, in Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511. This case was followed and affirmed in Chappell v. Waterworth, 155 U. S. 102, 15 Sup. Ct. 34, 39 L. Ed. 85, and was again confirmed and applied in Walker v. Collins, 167 U. S. 58, 17 Sup. Ct. 738, 42 L. Ed. 76. That case was an action brought in a state court against a defendant to recover damages for an alleged seizure of goods and chattels, property of the plaintiff. The defendants answered, averring that during the times mentioned in the complaint the defendant Walker was the marshal of the United States for the district of Kansas, and that the other defendants were his deputies; that the seizure complained of was made under the authority of an order of attachment issued out of the circuit court of the United States for the district of Kansas, in an action therein pending, in which Van Ingen & Co. were plaintiffs, and H. Cannon defendant; and it was averred that the goods were liable
The other question, was it properly removed? is practically decided. The petitioner evidently overlooked a distinction in the acts of congress, and supposed that he came among the cases specially provided for. But he was not an officer in the revenue service of the Tbiited States, nor was he acting under the authority of such an officer. Had this been the case, he could have applied to and have had an order from the circuit court of the United States ordering the removal of the cause, and enforcing it with a certiorari. Rev. St. § 643. Nor was he acting under title 26, “The Elective Franchise,” in which case he could have obtained the same relief. Nor is his claim for removal based upon prejudice or local influence, for an indispensable prerequisite to this is diversity of citizenship between the parties. If this had been fulfilled, the circuit court of the United States could have of its own will ordered the removal. His petition discloses the fact that he was acting as marshal, obeying the order of the district court. This could have raised a federal question. Bock v. Perkins, supra.
Now, the act of 1887-88 prescribes the mode in which a party sued in a state court can remove his case into the circuit court of the United States. This mode and this relief are the creation of statute, and the statute must he followed. It gives jurisdiction to the federal court, and, to be effective, all the provisions of the statute must he fulfilled. In order to obtain such a removal, the defendant must, before the lime for answering expires, file his petition in the state court, and accompany it with a bond, with a certain condition. These are the terms prescribed. They were not followed in this cast;. Ho it is clear that the case was not properly removed. This court feels the full force of the argument that the marshal should be protected when he acts in obedience to the orders of the United States court. The question, however, is, can this circuit court in this proceeding protect him? Has it jurisdic
