31 F. 53 | U.S. Cir. Ct. | 1887
This suit was commenced in the circuit court of the state for Linn county on July 1, 1886; and on July 6th was removed, on the petition of the plaintiff, to this court. It appears from the complaint that the suit is brought to set aside certain conveyances of real property situate in said county, and made by the defendant Foster, when in failing circumstances, to the defendants Pearce and John A. and William Crawford, of said county, and subject the same to the payment of two certain judgments, equal in value to $15,966, with interest from. March 8, 1886, of which the plaintiff is, for a valuable consideration, the assignee of certain citizens of Oregon.
The petition for removal states that the plaintiff is a citizen and resident of Illinois, and the defendants are citizens of Oregon, and that the controversy in said suit is between citizens of different states; that the plaintiff also desires to remove said suit under subdivision 3 of section 639 of the Revised Statutes, and has filed the affidavit required for that purpose. The affidavit is made by the plaintiff’s attorney, and states that the affiant and the plaintiff “have reason to believe, and do believe, that, from prejudice and local influence,” the latter “will not be able to obtain justice in said state court.”
On August 21st the defendants answered, and on September 10th the cause was put at issue b}r the filing of a replication thereto; and on October 7th the case was referred to a master to take the testimony therein, and report his findings of fact and conclusions of law thereon. The testimony has long been closed, and the case is awaiting the convenience of the master for final argument before him.
On April 29th the defendants made an application under section 2 of the act of March 3, 1887, (24 St. § 553,) to examine into the truth and grounds of said affidavit, alleging therein that the same was untrue, and
This ease is a good illustration of the indelicacy and inexpediency of the proceeding authorized by the act of 1887, whereby this court may be required to pass upon the fitness of a state judge to try a particular case. The affidavits of the defendants amount to nothing. Of course there is no prejudice in the county against the plaintiff personally, for he is unknown to the community. But there may bo a prejudice in favor of his adversary that would bo ns much in his way of obtaining justice as a prejudice against himself. The prejudice and local influence mentioned in the statute is not merely a prejudice or influence primarily existing against the party seeking a removal. It includes as well that prejudice in favor of his adversary which, may arise from the fact that he is long resident and favorably known in the community. Then there is the (lenient of local influence, which implies that in a controversy between a stranger and resident parties having the power, through wealth, business or social relations, or personal popularity, or all combined, to direct or materially aid in the direction of political parties, and control the selection of public officers and the distribution of party emoluments, the former may be at a great disadvantage, if not powerless to assert his right.
And this implication is no unusual reflection on any particular community or persons. On the contrary, it is such a well understood and recognised frailty of human nature that jurisdiction of controversies between citizens of different slates was expressly given by the constitution to the national government, and this, not only as a means of doing justice, but of facilitating the trade and intercourse between the people of the several states, which the constitution was formed, for more than any other purpose, to protect and promote. Neither is it unreasonable that in a case like this, where a stranger from another state is seeking to set aside conveyances made in favor of local creditors of' long standing and high character in the community by a tailing debtor of like standing and character, that there should ho prejudice and local influence, not against the plaintiff personally, but against his cause, and in favor of his adver
Counsel for the defendants maintain that, admitting there is a prejudice and local influence in Linn county in favor of the defendants in this case, the case being an equity one, to be decided by the court without a jury, there is no reason to think or believe that the circuit judge would be affected or influenced by it in the least degree. On the other hand, counsel for the plaintiff contends that on the proofs, and in the nature of things, there is a strong prejudice and influence in Linn county in favor of the defendants in this controversy; and that the circuit judge, who holds his office by the good will of this community, and is a particular friend of the principal defendant, may be, and probably will be, more or less unconsciously affected in his mental vision and conclusions by these circumstances.
I have been thus at some pains to state the nature of this application, and the proceedings thereon, more particularly for the purpose of correcting a gross misrepresentation that got into the newspapers, at the time, concerning what was said by counsel for the plaintiff about the judge of the circuit court for Linn county. The fact is, nothing whatever was said against his integrity, and counsel was careful to disclaim any such purpose. And I deem it due to myself to say that, if anything of the kind had been attempted, I would have considered it my duty to check it at once. And now, having said this much on this phase of the subject, I propose to dispose of the application without passing on the question of prejudice and local influences.
In the first place, in my judgment it comes too late. The statute provides that it may be made “at any time before the trial.” Ever since this case was referred to the master, with directions to take the testimony, and find the facts and conclusions of law arising thereon, it has been on trial. The proceeding, and the effect of it, is in all respects similar to a trial before a referee under the Code. In the second place, the cause was removable to this court, and was so removed, under section 2 of the act of 1875, as a suit in which there is a controversy between citizens of different states. Although the plaintiff, as assignee of a non-negotiable contract, could not have brought this suit in this court in the first instance, because his assignors, who were citizens of Oregon, could not, yet he might remove it here from the state court. This has been settled by the supreme court of the United States in Claflin v. Commonwealth Ins. Co., 110 U. S. 81, 3 Sup. Ct. Rep. 507, in which itwas distinctly held that the restrictions on the commencements of suits in the national courts contained in section 1 of the act of 1875, does not apply to their removal under section 2 of said act. And this conclusion does not, as suggested by counsel for defendants, render nugatory the provision (subdivision 3, § 639 Rev. St.) for removing causes on the ground of prejudice or local influence, or that of the act of 1887, allowing the grounds of such removal to be contested in the circuit court. For although a cause cannot
The fact is, this case was removed on two grounds, or at least two grounds for removal are well stated in the petition; and so long as there is good cause of removal appearing of record, the adverse party is not entitled to have the cause remanded.
The application is denied.
