Van Brunt v. Corbin, 14 Blatchf. 496

Van Brunt v. Corbin

14 Blatchf. 496 | U.S. Circuit Court for the District of Eastern New York | 1878

BENEDICT, District Judge.

This is a motion to remand this cause to the state court, whence it has been removed by filing a petition and bond, by virtue of the provisions of the act of March 3, 1875 (18 Stat. 470). The suit is an action of'ejectment. The plaintiff is a citizen of the state of New York. Of the five defendants, three are citizens of the state of New York, one is a citizen of the state of Ohio, and the other is a citizen of the state of Indiana. None of the parties are nominal parties. All of the defendants joined in the petition for removal, and the whole suit is sought to be transferred to this court.

The right to retain this cause in this court is sought to be upheld upon the authority of *953a decision made by Mr. Justice Bradley, in Girardey v. Moore [Case No. 5,462], where it was determined by that eminent judge, that, under the act of March 3d, 1875, the right of removing a cause from the state court to the circuit court of the United States, exists in all eases where there are substantial parties, citizens of different states, on opposite sides of the cause, although there are parties on opposite sides who are citizens of the same state. I am prevented from adopting j this view of the statute, by a decision of the ; circuit judge of this circuit, in Petterson v. j Chapman [Case No. 11,042], where it was i held, that, to authorize a removal under the j act of March 3d, 1875, each individual plain tiff must have a different state citizenship from that of each individual defendant. This ! decision now furnishes the law for this cirj cuit, and, in accordance with such authority, j it must be held, in this ease, tnat, inasmuch 1 as here there is but one controversy, to which all the parties in the suit are substantial parties. and where some of the defendants are citizens of the sanie state with the plaintiff, the suit is not one. in which there is a controversy between citizens of different states, j within the meaning of the act of March 3d, 1875.

[Subsequently a writ of error was sued out from the supreme court, where the order to remand was affirmed. 105 U. S. 576.]

This conclusion renders it unnecessary to consider the other grounds of objection to the proceedings. The motion to remand is .granted.