40 Ga. 1 | Ga. | 1869
We think there can be no great difficulty about this case. The Act of Congress of 27th July, 1866 (14 U. S. Statutes at large, 306), provides, in substance, that if, in any suit already commenced, or that may hereafter be commenced in any State Court, by a citizen of the State in which the suit was brought against- a citizen of another State, the matter in dispute exceeds the sum of five hundred dollars exclusive of costs, and if the suit, so far as relates to the defendant' who is the citizen of a State other than that in which the suit is brought, is or has been instituted or prosecuted, for the purpose of restraining or enjoining him, or if the suit is one in which there can be a final determination of the controversy so far as it concerns him, without the presence of the other defendants as parties in the cause, then and in every such case, the defendant, who is a citizen of a State other than that in which the suit was brought, may at any time before the trial or final hearing of the case, file a petition for the removal of the cause, as against him, into the next Circuit Court of the United States to be held in the district where
By the Act of Congress passed 2d March, 1867 (14 U. S. Statutes at large, 558), it is declared that, where a suit is now pending, or may hereafter be brought, in any State Court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars exclusive of costs, such citizen of another State, whether he be plaintiff or defendant, if he will mak'e and file in such State Court an affidavit, stating that he has reason to and does believe, that from prejudice or local influence he will not be able to obtain justice in such State Court, may at any time before the final hearing or trial of the suit, file a petition to such State Court, for the removal of the suit into the next Circuit Court of the United States, to be held in the district where the suit is pending; and offer good and sufficient security for his entering in such Court on the first day of its session copies of all process, pleadings, depositions,
But two points were-seriously insisted upon in the argument for the plaintiff in error. First, that Stewart had the right to, traverse the affidavit of Mordecai filed in conformity to $he above recited Acts. Second, that the United States Ci'rcuit Court can not take jurisdiction of the case, because Cutts, who is a party defendant with Mordecai in the bill, is a citizen of Georgia, and his rights can not be adjudicated in the Circuit Court, in the same State in which the complainant in the bill resides.'
It is sufficient reply to the first ground to say that the Act of Congress is plain and imperative. It leaves nothing to construction. When tile affidavit is filed and ’the bond given as required by it, it declares that it shall be the duty of the State Court to accept thp security, and proceed no further in the suit. If a traverse of the affidavit should be allowed, and a trial had upon it, this would be a further proceeding which is forbidden by the Act. Besides, the reason of the law is against this view. If the prejudice ,or local influence does in fact .exist, which denies justice to the citizen of the other State, who makes the affidavit, it would operate the same denial of justice, perhaps in a greater degree,
We are equally clear that the other ground can not be sustained. Here the suit or bill was brought by Stewart against Mordecai, á citizen of South Carolina, who was plaintiff in the common-law proceeding, for the “ purpose of restraining and enjoining him.” This is one ground for the transfer. Another is that, “ there can be a final determination of the controversy, so far as concerns him, in the United States Court, without the presence of Cutts.” If the claim set up by Stewart, to have tile note on which he is a surety credited with the amount of usurious interest paid by Cutts to Mordecai in other transactions, can be sustained at all, it can be sustained as well without the presence of Cutts as a party as if he were present. If the amount should be allowed, and it is sufficient to satisfy the note on which he is surety for Cutts, the' verdict must be for him in the State Court or the United States Court; if not, it could not be for him in either. If it entitles him to a credit, he can get the beneijt of it in either Court. If he needs the testimony of Cutts, he can have it under the rules of evidence which prevail in either Court. Why then, may not the final determination of the controversy,-so far as it concerns Mordecai, be readied in the United States Courts without the presence of Cutts as a party, and with as much justice to Stewart as if Cutts were a party ?
But it is said the right of Cutts can not be protected in this way. Why not ? If Stewart can set up the usury, and defeat the recovery of Mordecai, it will inure to the benefit of Cutts as much as if he were a party. If Stewart shows in the United States Court that the debt is paid, and gets judgment accordingly, Cutts is no longer liable upon it, either in the State or Federal Courts. And if the amount for which Mordecai is liable to Cutts exceeds the amount of the note, so as to entitle Cutts to a judgment, he is not barred from recovering it in a proper proceeding, by the judgment in the United States Court in the case between Stewart and Mordecai. The Act of Congress is explicit, that the removal of
Again, if there are rights between Stewart and Cutts to be adjusted, that can be done in the State Court as well as if this proceeding as to Mordecai had not been transferred to the Federal Court.
Let the judgment of the Court below be affirmed.