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
The act of 1875, which has passed into the decisions of the supreme court of the United States, requires that the petition for.removal be filed "before or at the term at which said cause could be first trit:d, and be.. fore the trial thereof." The act of 1887 demands an earlier application for removal; one made at the term at which the case is returnable, instead of at the term at which it is first triable. It is very evident that in this aspect of the cause the application for removal comes too late. It remains to determine whether the allegation as to local influence and prEUudice brings the cause here. The act of March 2, 1867, provide& that for such cause removal may be had on petition filed "at any time before the trial arfinal hearing of the suit." The act of 1887 says that the application for removal may be filed "at any time before the trial thereof." The words "or final hearing" are omitted. The act of 1875, so often construed, says the petition for removal may be filed "before or at the term at which said cause could be first tried, and before the trial thereof." Each act has the words" before the trial thereof. " The evident intent of congress in the act of 1887 was to diminish and discourage litigation in, and curtailthe jurisdiction of, the federal courts, and when it omitted from that act the words" or final hearing," it meant to place removals which had been provided for on account of prejudice and local influence in the same category as removals under the act of 1875. If the hearing and determination of a demurrer be a trial in one case, it must be a trial in the other; such a conclusion seems inevitable. In the view of the matter taken, it becomes unnecessary to construe what is to be understood bythis.language of the act of 1887: "When it shall be made to appear to said circuit court that, from prejudice or local influence, be will not be able to obtain justice in the state court." It is not stated how it is to be made to appear; whether the circuit court is to institute and conduct 'an inquiry to ascertain the fact, or whether it is sufficient tllat it appear by petition and affidavit, as under the act of 1867. Indeed it does not appear from the language of the that the state court is permitted or authorized to take any act of part in the removal, or is even to he advised in regard to it; hut the whole matter is to be left to the judgment of the circuit court, to which the application of removal should be made. The third section of the act, while it stipulates "that whenever any party entitled to remove any suit the next preceding section * * * may make and file mentioned a petition in such suit in the state court" at or before the return term, excepts "such cases as are provided for in the last clause of said second section." It is not very clear what is embraced in the term "last clause" of the section, but a sensible interpretation of the term would be, it seems to me, that it included that part Of the section which provides for the re· moval of suits upon the grounds of prejudice and local influence. Perspicuity is nota characteristic of the act of March 3, 1887. Let the cause be remanded.
CHICAGO & E.
& E. 1. R. CO · . (Circuit Court, 8. D. New York. November 24,1887.)
REMOVAL OF CAUSES-PLEA-JURISDICTION OF COURT.
An lilinois corporation was sued in the supreme court of New York, and the Cause was removed to the federal circuit court for the Southern district, whereupon defendant filed a plea alleging that the court had no jurisdiction, or, if it had, that it ought not to exercise it, for the rAason that the cause could be tried with greater convenience in the courts of Illinois. Held that, as no controlling authority appeared to warrant such a proceeding, the plea should be overruled.
Plea in Equity. JohnW. Weed, for complainant. AtlAJtenG. Fox, for defendant. COXE,J:. The complainant is a citizen of New York. The defendant is an Illinois corporation. The action was commenced in the autumn 6f18S6 in the supreme court of this state: The who is the owner of income bonds issued by the defendant, the par value of which is $62,500, seeks to compel an accounting from the defendant of its net earnings,. and the application thereof to the payment of the interest upon his bonds; he also asks for an injunction restraining the disposition of the earnings until the interest is paid. The defendant, having entered a general appearance, and removed the cause to this court, demurred, upon the theory that the trustee under the mortgage given to secure the complainant's bonds was a necessary party. The demurrer was overruled. 30 Fed. Rep. 397. Subsequently the defendant filed an answer on the merits, and also a plea disputing the jurisdiction of the court, upon the ground that the defendant is a foreign corporation, having no property, and transacting no business, in this district. Upon the'argument of the plea the counsel for the defendant admitted that this court has jurisdiction of the subject-matter of the suit, and of the perSOn of the defendant: See Robinson v. Stock- Yard Co., 12 lfed. Rep. 361; Jonea v. Andrews, 10 Wall. 327; Block v. Railroad Co., 21 Fed. Rep. 529; Kelsey v. Railroad Co., 14 Blatchf. 89; Gracie v.Palmer, 8 Wheat. 699; Flanders v, Insurance Co., 3 Mason, 158. But it is contended by the defendant that, although the court has the power to djsRose ofthe cause, it may, in its discretion, send the parties to the courts of Illinois, where the questions at issue can be more conveniently and properly determined, and that this discretion should be exercised. The assertion that the cause can be tried with greater 90nvenience in Illinois is vigorously disputed by the complainant. As this court has in several similar instances retained juriSdiction, and as no controlling.authority has been cited sustaining the view of the defendant,it is thought that the plea must be overruled. The answer already filed may stand. It is of course unnecessary to pass upon the complainant's objection ,that the defendant, by answering upon the merits, waived its plea',