!I"EALE V. FOSTER·
..A federal court has no' jurisdiction in cases of proceedings to establish a will. In fiaines v. Fuentes, 92U. 8.10, the supreme court said: 'There are, it is true, in several of the decisions of this court, expressions of opinion that federal courts have no probate jurisdiction, referring particularly to the establishment of wills; and such undoubtedly is the case under the existing legislation of congress.' By this ruling I am bound, and it is conclusive of this case. See, also, Case of B1'oderick's Will, 21 Wall. 504; lJu Vivier v. Hopkins, 116 Mass. 125; Yonley v. Lavender. 21 Wall. 276; Tarve1' v. Tarver, 9 Pet. 174; Ward v. Peck, 18 How. 270; Adams v. Preston, 22 How. 473, 478."
As to the third and fourth grounds to remand,-that is, that codefendants of Harriet A. Butler Reed are citizens' of the same state as the plaintiff, .Franklin A.Reed, and that the controversy of Mrs. Butler Reed is not wholly between citizens of different states, and which can be fully determined between them,-the record shows that Franklin A. Reed, the plaintiff, is a citizen of Ohio, and that Adeline E. Reed, a legatee, .and J.ames H., Hunt,administrl;ltor of Gustavus P. Reed, defendants with Mrs. Butler Reed, are citizens of the state of Ohio, and same state of the plaintiff. If Hunt, administrator, a,nd Adeline Reed, are necessary parties, and not merely nominal, then the act of Marcb3, 1887, does not allow one defendant to remove who may be a citizen of another state, because then the controversy cannot be fully determined between Hartiet 1\.. Butler Ree,d, as between her and the plaintiff. The state statute provides that "all the devisees, leglttees, and heirs of the testator" and other .interested persons, including the executor or administrator, must be made parties to the action." Parties required by the statute to be made can hardly be said to be merely nominal ones, but must be regarded as necessary parties. If such necessary parties, then oneof them, Harriet A. Butler Reed, cannot have a separate controversy with the plaintiff, and wholly between her and the plaintiff, which can be fully determined without the presence of the other parties, as required to be shown to entitle her, as one of the several defendants, to a removal Qf the case. On both grounds, then, the motion to remandwill.be sustained, and the case retpanded to the common pleas of Stark county.
Nl!:ALE V. FOSTER
June 15, 1887.) OJ' 1887-DIVEBsJll
BJIlMQ.VAL o.l!' CAUSE-AP1'LICATION TO REM.urn-AcT ZENsmp.
The plaintiff being' the owner and assignee of a non-negotiable contract. namely, two judgments for money, brought suit in the 'state court to set certain alleged fraudulent conveyances by the.judgment debtor, and to subject the lands described therein to the satisfaction of said jUdgments, and . then caused the suit to be removed to this court,' stating in his petition therefor.that the plaintiff is a citizen of illinois, and the defendants citizens of
Oreg;on, and that on account of prejudice and local influence he could not obtaIn justice in the state court; in support of which latter statement he llIeq an affidavit, as required by subdivision 8 of section 639 of the Revised Statutes,· .On April 29th, and after the had been put at issue by a replication to the defendant's answer, and .the same bad beeu referred to the master to take the. testimony, and find the facts and conclusions of law arising thereon, and after the testimony was closed, and the case was awaiting the convenience of the' master for flnal argument before him. the defendants applied. under section 2 Of the act of 1887,.(24 St. 558,) to examine into the truth of said affidavit,allllging that the same is untrue; on which issue affidavits were filed , by the parties. Held, (1) that the proceeding authorized by the act of 1887, whereby this court is called upon to pass on the fitness of a state judge to try a pstticular Cll.!le, is indelicate and inexpedient; (2) the application is too late, ,not having, been made before the trial, or hearing commenced before the master; and (8) the cause was removable on the ground of the diverse citizenship of the 'Parties, irrespective of the question of prejudice and local influence, and therefore the application to remand is denied, without passing on t1:\esame. ($yllabU8 by the Otntrt.)
Suit in Equity to set aside Fraudulent Conveyances.' Application remand. ' O. E. S. WOod, for plaintiff. Earl a. Bronaugh, for defendants.
DEADY, J. rhis 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 conveyancesofreal property situate,in said county, and made by the defendant Foster, when in fail'ing 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 signee of certain citizens of Oregon. The petition for removal states that the plaintiff is a citizen and dent 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. 'l'he 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 CRuse was put at issue by 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 andcollclusions oflaw thereon. The testimony has l()ng, been closed, and iEl awaiting t1;le. convenience of the master for final argumt'nt before hIm. . On April 29th the defendlmts made an application under section 2 of the act of Mat:ch '3, 1887, (24 St. §55,3,)to examine into the truth and grounds of said, affidavit, alleging therein that the same was untrue,and
NEALE 'IJ. FOSTER.
insnpport of such allegation filed the affidavits oOhe sheriff and clerk of the county, and the defendants Foster, and John A. and William Crawford. The plaintiff having a day to reply to the same, filed the affidavits of the defendants Baltimore and GoUra, who have unsatisfied judgments against Foster, and of three other respectable citizens of the county. The affidavits for the defendants are simply to the effect that the plaintiff is unknown in the county, and the affiants are not aware of any prejudice against him, either by the people or the judges of the courtS. , The affiants for the plaintiff state that the judge of the circuit court of Linn county is regarded as generally prejudiced in favor of the principal defendant, John A. Crawford, and that the plaintiff is not likely to have a fair trial in that court against said defendant; and also that one of the three judges of the supreme court of the state is a resident . of said county, and acted as the attorney and adviser of Foster and Crawford in the preparation and execution of the alleged fraudulent conveyances. This case is a good illustmtion 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 be a prejudice in favor of his adversary that would be as much in his way of obtaining justiceasa prejudice against himself. The prejudice and local influence mentioned in the statute is not merely a or influence po.marilyexisting against the party seeking a removal. It inclUdes as well that prejudice in favor of his adversary which may a,rise from the fact that he is long resident and favorably known in the community. Then there is the element of local influence, which implies that in a controversybetween a straugerand resident parties having the p()wer,through ,wealth, business or social re1ati()ns, or personal popularity, or all com'Hined, 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 fornler may be at a great disadvantage, if not powerless to assert his right. And this implication is no unusual reflection on any particular communityor persons. On the contrary, it is such a well ul1derstood and .recognized frailty of human nature that jurisdiction of controversies between citizens of different states was expressly given by the constitution to the national government, and ihis, not only as a means of doing jus,tice, 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 made in favor oflocal creditors of long" standing and high character in the community by a failing debtor of like standing and character, that there sl:i.ould be prejudice and local influence, not against the plaintiff personally, but against his cause, and in favor of his adver-
sarles. How far this influence and local prejudice mightextend,and whether it would consciously or unconsciously influence the mind and action of the coun, would depend largely on the temper and character of the judge. 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 Olia, to be decided by the court without a jury, there is no reasoh to think or believe that the circuit judge would be affected or influen6ed by it in the least degree. On the other' hand, courisel 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 theprincrpal defendant, may be, and probably will be, more or less linconsciously 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, mote particularly for the pnrposeof correctinga grosstilisrepresentation that got into the newspapers, at the time, concerning what was said by oounsel for the plaintiff about the judge of the oircuit court for Linn county. The fact is, nothing what-, ever 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 attell1pted, I would have considered it my duty to check it at 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 localinfiuences, 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 it was distinctly held that the restrictions on the commencements of suits in the national courts contained in section 1 of the actof1875, 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 infiuflDce, 'or that of the act of 1887, allowing the grotIn.ds of such re;noval to be contested in the circuit court. For although a cause qannot
SAMUELS V. LOUISVILLE & N. R. CO.
be removed for prejudice or local influence, unless the parties are also citizens of different states, yet it may be remo.ved on the former ground after it is too late to apply on the latter one alone. The petition, in the case of diverse citizenship, must be filed before or at the time at which the suit could first be tried; while, in the case.of prejudice or local influence, it is sufficient if the petition is. filed before the final trial or hearing thereof,- and this may be long after the time at which the suit could first be tried. Indeed, it may be filed after a mistrial or a new trial granted, w4en the prejudice or local influence has so manifested. itself as to enable the party against whom it exists to makethe necessary affidavit for removal. Insurance Co. v. Dunn, 19 Wall. 214. The fact is, th;is case was removed on two grounds, or at least two grounds [email protected]
& N. R. Co.
Oourt, No D. Alabama. April Term, 1887.)
Where there are two rival lines of steam-boats on a river plying between the same points, and carrying freight for hire, both bearing the same relation to a railroad company and both seeking its services to· forward their freight to the. same points. of destination, and the company systematically discriminates against one by charging it 50 cents a hundred more for freight than the other, it is liable in damages at the suit of the line so discriminated against. The fact that the higher rate is not unreasonable does not affect the fact of discrimination. .
SAME-" PRORATING. "
The relative situations of the two lines with reference to the railroad company. both asto the kind of service sought and as to the conditions under which it is to be performed, being substantially the same, such a suit cannot be regarded as a claim for damages founded upon the refusal of the company to "prorate" with one line, upon through freights, upon the same terms that it does with theothel'.
At Law. On Demurrer to Complaint. L. W. Day, for plaintiffs. ." R. A. McOlellan and a. a. Harria, for defendant.
BRUCE, J. The plaintiffs allege they were engaged as common carriers for hire by means of steam-boats on the Tennessee river, between Decatur and intermediate points, to Bridgeport, in the year 1886; that at the same time, and between the same points on the Tennessee river, the steamboats Chattanooga and Wilder were also running on the river between the sanie points, as carriers, in competition with the plaintiffs; that the