Niblock v. Alexander

44 F. 306 | U.S. Circuit Court for the District of Indiana | 1890

Woods, J.

This cause was removed from the state court upon the petition of the defendant John S. Alexander, who is a citizen of Texas, his co-defendants being one of them a citizen of Pennsylvania and the other a citizen of Indiana. Of the plaintiffs, Niblock is a citizen of Illinois and Zimmerman of Indiana. The suit is to enforce an arbitration bond executed by the defendants to the plaintiffs, and the plaintiffs aré jointly and equally interested in the relief sought. The removal was obtained upon the ground of prejudice and local influence. Aside from the citizenship of the parties, the proof of prejudice or local influence can hardly be deemed sufficient. There is conflict in the decisions on the subject, but' the opinion of Justice Harlan, as declared in Malone v. Railroad Co., 85 Fed. Rep. 625, is controlling in this circuit. After reviewing the statutes, he says:

“I am of opinion that congress did not intend to vest the circuit courts of the United States with authority to take cognizance of a case pending in a state court upon the ground of' prejudice or local influence against the defendant, a citizen of another state, unless the circuit court, in sonae proper way, found as a fact that such prejudice or local influence existed. And the simple affidavit by an officer of a defendant corporation, stating in general terms that it cannot, from prejudice or local influence, obtain justice in the state courts, — no opportunity having been given to the plaintiff, by notice, to controvert such statement, — ought not to be accepted as sufficient evidence of that fact. ”

For cases touching the question, see Cooper v. Railroad Co., 42 Fed. Rep. 697. The affidavit in support of the petition for removal of this cause was mp'’n by the petitioner’s attorney, and is in the general terms of the statute, except that it contains the statement “that affiant knows the facts of such prejudice and local influence, and makes this affidavit from such knowledge.” But this necessarily is only an expression of opinion, and, without a statement of facts to justify it, means no more than if the affidavit had conformed to the language of the act of March 3, 1875, “that he has reason to believe and does believe,” etc. The present act says: “When it shall be made to appear to said circuit court,” etc., and the change of phraseology seems to me to require the interpretation which Justice Hablan has adopted. In Rike v. Floyd, 42 Fed. Rep. 247, an affidavit was held insufficient on grounds quite applicable-hero. See, also, recent decision of the supreme court in Ex parte Pennsylvania Co., 11 Sup. Ct. Rep. 141, (decided December 22, 1890.) Whether or not, if the showing of prejudice were prim,a facie good, the court ought to consider the counter-affidavits, which have been filed, or should sustain the motion made to reject them, need not be considered.

There is another and more conclusive reason why the court cannot take jurisdiction of this cause. There is in it no “controversy between a citizen of the state in which the suit is brought and a citizen of another state.” It is perhaps not material that the defendant who sought a removal was joined as co-dcfendapt with a citizen of the state where the suit was brought, but it is fatal to the right of removal that one of the plaintiffs was a citizen of another state. It was so decided, after careful consideration, in the case of Thouron v. Railway Co., 38 Fed. Rep. 673. Motion to remand sustained.