BOU!BKE, :Treasurer, etc." "'.
President, etc., and others.
(Circuit Court. S. D. N(fJl' .York. Dece.mber1, 1887.)
COURTS-FlnDEML ,OF MARCH 8, 1887. : The 'act ot. 'congress of March 8, 1887, concerning United States circuit courts. provIdes that no civil suit shall be brought by original process or prowhereof defendallt.is an inhabitant, but ceeding in any district except. that, where jurisdiction is foundel'l only on the fact that the actionls between citizens of different states, suit' shall be brought only in the district of the residenoe of either plaintiff or defendant. Held that.' under these provisions, the process of such courts will throughout tlle United States, except in the partioular cases, and to the extent provided by Rev. St. U. S. § 738·
.Hess for Bourke·. Roger .Ji''ostef, for Amison.
LACOMBE, J. This is an action brought against three defendants, residing I , in illinois, Tennessee, and Washington, D.C. Service has been., made npon ellch of them at his place of residence, and motionis now made to set aside service of process' on the ground that it is made without the circuit in which the action was commenced. In theaet of March, 1815, it was provided that no civil suit shall be brought before the circuit court against any person by original process or proceeding in any other district than that whereof he is an inhabitant, or in which. he shall be found at the time of serving such process or commencingsllch proceeding, except as thereinafter provided. In the act of March, 1887, the words "in which he shall be found at the time of serving such process or commencing such proceeding" are omitted. In the same section, however, there is inserted the following clause: "But where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff 01' defendant." The plaintiff contends that the language of this clause not only confers jurisdiction upon the circuit court of either district over a suit wherein the plaintiff and defendant reside in different districts, but that it also allows process of such court to be served outside of the district. Whether the first oftbese propositions is or is not sound need not be now determined; whatever may have been the intention of congress as to the conferring ofjurisdiction, there is not sufficient warrant in the inserted words .for the claim. that the process of the circuit courts should henceforth run throughout .the United States, except in the particular cases, and to the extent already provided for in section 738. So extensive and extraordinarya grant of power is not to be spelled out from words which are susceptible of. reasonable interpretation without being held to effect 80 radical a. change in existing law·.
LOOKOUT MOUNTAIN R. CO. v. HOUSTON & CO. and others.
(crzrcuit Oourt, E. D. Tennessee. November 14, 1887.)
REMOVAL OF CAUsEs-Tum OF ApPLICATION-ACT OF MARCH
8, 1887. Defendant, his demurrer to the bill having been overruled on appeal by the suprellle court of the state, filed his petition for removal, April 12, 1887, on the grounds of (1) citizenship, and (2) local influence and prejudice. Held, that,. the application came too late, the act of March 8, 1887, requiring petitions for removal on the first ground to be filed at the term to which the case is returnab!e, and those on the second ground "before trial, II and the hearing and determination of a demurrer being a "trial, II within the meaning of that act.
On Motion to Remand. Goree &; Landrum, for complainants. Cooke, Olift &: Cooke, for respondents.
KEY, J. This cause comes here by removal from the chancery court of the state, and a, motion has been made to remand it. The petiti,on for removal is .on behalf of two of the defendants, who set up two reasons for removal: First. "That petitioners were both, at, the time of bringing the suit, al1d still are. citizens of the state of Ohio; and that they are the only material defendants; and that all the complainants are, and were at the time of filing said bill, resid!lnts of different states from petitioners;" and, second, "that they have reason to, and do believe, that,from prejudice and local influence, they will not be able to obtain justice in the state cour,t!' It is not necessary for both causes of removal to exist in order to authorize it. One is sufficient, if it be valid. It appears from the record sent here from the state court, that a demurrer was filed in that court by the petitioners for removal, upon various grounds going to the entire bill ofcomplaint; that the demurrer was sustained by the chancery court, and the bill dismissed, from which decree an appeal was taken to the supreme court of the state, which reversed the decree of the chancellor, and sent the cause back to the chancery court to be proceeded with. It is most palpable that the cause is not removable under the act of March 3, 1875, the supreme court having decided time and again that the hearing of a demurrer is a "trial," within the meaning of said act. AUey:V: Nott, 111 U. S. 472, 4 Sup. Ct. Rep. 495; Scharff v. Levy, 112 U. S. 711, 5 Sup. Ct. Rep. 360; Gregory v. Hartley, 113 U. S. 742, 5 Sup. Ct. Rep. 743; Laidly v Huntington,121 U. S. 179,7 Sup. Ct. Rep. 855. Moreover, the application for removal inthis cause was filed April 12, 1887, and falls under the provisions of the act of March 3, 1887, which says in cases like the one under consideration"He, the petitioner, may make and file a petition in said suit in such state court at the time, or any time before the defendarit is required by the laws of the state, or the rule of the state court in which suit is brought, to answer or plead to the declaration or complaint of the plaintiff, for the removal of Buch suit into the circuit court. OJ