SHORT fl. ClIICAGO, M. <\ ST. P. RY. CO.
SHORT fl. OHICAGO,
P. Ry. 00.
March 12, 1888.)
On Motion to Remand. Wilson &- Bowers, for the motion. W. H. No7"1"U3 and Flandrau, Squires &:- CutcMon, contra.
J. This is a motion to remand. - This action was bl'<c'tll;ht a citizen of Minnesota against this railroad corporation, which ,is a citizen of of Wisconsin. It is an attempt at remo\'al under the act of)887, on the ground of local prejudice, it being too late for a re.moval on the ground of difference of citizenship. One ground ()f the motion to remand is that this court cannot take original jurisdiction of an action by a citizen of this state against a citizen of anoth,er state, and therefore, if it cannot take original jurisdiction of such an actio ll , it cannot by removal acquire jurisdiction. I had occasion to examine that question in the state of Nebraska, and I there came to the conclusion that that proposition cannot be sustained. I think an action can be maintained in this court against a citizen of another state. I am aware that there is a decision in the circuit court of California to the contrary. FIELD, SAWYER, and SABIN, JJ., County of Yuba v. Mining Co., 32 Fed. Rep. 183. ' 'I sh1111' not discuss that qUf:}Sat length, from the fact' that my brother SHIRAS, in the Northern Iowa, has written an opinion upoll this point, which will be: v.34F.no.4-15
. published, no doubt; and I will say that his opinion expresses my ideas with respect to Rauwa1J ,Co.,,'32 Fed. Rep. 673. The other question is this: An affidavit is filed for removal, in which the affiant states that he ,has reason to believe, anddoes'i1)elieve, that by reason of prejudice and local influence he will not be able to obtain forum. );n, ()ther words,an affidavit is ma4e byJhe proper offiCfll'$ :the, form prescribed, by the act pf 1867. That act reads thus: " ' 8 eltizenoltihe stat,e in'which it isbronght and a citizen of 3ni>ther state,itmaybe so i'emoved on thepetitiondf the latter, whetherhe'beplaintiffor,defelldant,111oo at 'an:t time before'the trial or final hearing of the suit, if, before or at thetill),eof filing saId 'petition, he makes and files ,that be has reasoJ1. to, believe, and does Or i,nflUeI1cl;l he ",fn :qo,t .be able tIl ob· tp.;sliJ!idstatl;l ;,' . "
By that act the' remov81,YI'll.s granted upon the filing .of the affidavit;: ifin' the form, presaribed. t was absolute, and ·thE! actual ex· not a fqr inquiry. In other W9rdS, congr.eSs c,st. the buruen ,upon the conscience of the party, and said; that if he was ,!illil'1Ktomake an affidavit that he believed and had reason t()pelieve fi'<?in ,or local he could not obtain in the state court,then he should have ,a removal to the federal court. Nowhere was it left to be determined as to whether or not such prejudipe orinfluence did exist. But wheneverapy party litigant in the stl!.te. Court, with.theproper citizenship existing, felt that he could not obtain justice in the state court, and'was willing to express that fact in an affidavit, the right of removal went beyond the power of challenge. The act of 1887 is a complete reversal of that theory. I am aware that JUdge DEADY, of Oregon, iI;\ case ofF'isk v. Henarie, 32 Fed. Rep. 417. has held that this portion of tlieactwith respect to the filing of the affidavit is still in force, but I think he is mistaken. The thought which underliE,s; tbe matter of prejudiee and local influence to-day ,and that underlying the act of 1867 ,are,entirely different. While this act of 1887 is not in,ten;nsrepealed, yet it is familiar law that whenD. later actc()v" ers the same: ground I and is ol!>vionslyintendedby the legislature to be its expressed will upon the wholel'ltibject-matter involved therein, then, alJ though thereim:ay be no terms ofl'epeal, and' although there may'}>e 80me,pro\\'isions'inthe eatlier absolutelyinconsistel1t with those 'Of' the latera.ctj')'·etthe whole 'oithe earlier act is repealed. To my mind: it: is obvious 'that the legislatioll 0f1887, with respect to prejudice and local' influence, ,was intondedto'supersede entirely theae!' of 1867, and to plant llhe matter upon anew basis, and, pllinting it upon a new basis, to let the aot of, 1887 t!l.ke the 'place of that of 1867. Let us see whalt the actof1881 says upon that8ubject: a' is now, pendihg,()t roilY brought, in any court, ili'whieh there is a contrqversy between a qitizen of the state in which the suit 'is bl'ouglttand a citizen of .another state, 'any defendant, being:such' citize:Ui.olilanother .state. may remove su¢h Sl!lit into the'circu-itcourt' of 'the'
.i .' . . .'
fur lhe'propei'dilltrlct; at: ahrdihl1e before ma4e tQ apPllarto; said;cirouit; corltUhat· !from ptejmiice: influence'he will not be able to obtain justice in such state court."
""hJn: "10&'1' ,: t
In other words, before a be had on the ground of prejudice or local influence there must be shown to the circuit court of the United States the existence of such prejudice or local in.fluence. It is not given to the party ftpoti his' conscience to !'lay; he believes, or has prejudice exists. and thereby, become enti, reason to believe, tIed to a removal; bdtthere is a question of fact which the circuit court and it cannot, order the removal until it'appears"that must suell 'Prejudice or local influence exists. Now, that fact belllade ,How can nnyfact b.e rnaqe appear, ;either by oral ,testimQpyor, affidavits ? The affidavits in this case do.' not allege the fact. Counsel for plaintiff ,insists.that anaflidavit ,in form simply saying that tperEI does prejudiceqr irifl:uen,ce so as to prevent a fair trial, is not sUfflcfent; that that is a fact 'which cannot be testified ,to in a general way; that the affidavits must show a series of isolated and arate facts, from which, taken together, the court can see that such'ldcal prejudice does exist. Upon that propositibnI am incUr-edio him so far as the first showing is made. It is not, however, necess'ary to positively decide that now., If the question were prese.nted I should be inclined to hold that an .affidavit alleging in plain and unequivoca}terrns, that such localiprejudice does exist, and that a fair trial cannot be had, would entitlec'the partYctl> a removal. I think, however, that that faet, ·Uke any other fact, may be challenged. After the l1ffidavit bas been presented, and a removal ordered, the party opposing it may COme in and traverse that allegation of prejudice the same as any other averment of fact; and this need not be done by a plea of abatement. No particular form of procedure is prescribed. The rule has obtained, as is 'proper, that where a petition for removal is filed on the ground of citizenship, the truth of its allegations should be challenged by a plea in abatement. 'But under the local prejudice cause no petition need be filed j all that is req'uiredis that it Shall be made to appear to the thatftomprejudice or local influence the party will not be able to obtain justice in such state court; and this showing may be made by affidavit, and if this contains a specific averment, while 'it may not be conclusive, it is primnfacie evidence of the fact, ani:lthrows the other party to challenge its truth. the case into this court, There being no form, no procedure, prescribed, I think the court in any particular case may prescribe a mode of procedure, or might lay down a general rule applicable to all cases. Such being the conclusion to which I have come, both from the argument here·and those had' elsewhere, .it must be held that this affidavit is insufficient. It is no llffidavit at all. It is afol'lllof affidavit that might be usedfor the verification ofa. plead1 ing or other purposes when authorized by statute; but aseviderice 'it is Tshall haveto sustain tbemotidnto remand,on the groiind that there is no evidence' bMore me. to findtbe, existence of any prejudice otlocal influence. As a <ftWstion of practice; and:
.the state lthink that:theaflidavit of prejudice or 10. cal influence J:nay be filelUhthat court, and then a certifi.edcop1 fi.ledin this. " '' "'
VINAL t1. CONTINENTAL CONSl'.
No D. New Y01'k. March 19.
RBlIOVAL"Oll' CA.USES-SEPARABLE CONTROVERSy-ACT OF
MARcn8, 1887. A bill of complaint. tlledina state court of New York by a citizen of Massachusetts, against a corpbration of Vonnecticut and ,a corporation of New York, averred a cause of action, and prayedfor damages and ,an accounting 8S against the Connecticut corporation alone. for failure' t6' perform a contract. , Held. that the Copnecticut corporation was entitled to a removal under the 8ct of congress of March 8, 1887; the plaintiff and the removing de· fendant havin$ a separable controversy; they being citizens of different states, and the removlDg defendant not having been sued in his own state.
On Motion to Remand. Matthew IIale, ,for the Illotion. Thoma8 H. 'Hubbard, contra.
WALL,ACE,J. This suit was brought in the state court by a citizen of Massachusetts against a corporation of Oonnectic.ut aod a corporation ofthis sta.te. ' It was removed ,upon the petition of the defendant, the corporation, and, the plaintiff has moved to remand. the presents a controversy to which upon p, very preposterous theory of legal right the corporation of this state is a necessary party as well as the removing <lefendant, it also presents a separable controversy the plaintiff and the removing defendant, because the bill ofcomplaint avers a of action, and prays for damages and an accounting as against t4litd,efendant alone, .for failure to perform a contract. In this respect it is lilFe the case of,Boyd v. Gill, 21 Blatchf. 543, 19 ,Fed. to,the 1tct of 3, 1887, inasmuch as the pllliJ;l¥fl' and thereJilloying defendant have a sepa,rable controversy, are ot different states, and. the removing defendant was not sued in his ()wn. stll.te,the case lis ;removable under the act of March 3, 1887. Under the second section Qi:that act any suit of a civil nature is removable by the defendant ofWhich the circuit courts. are given jurisdiction by the first section, and by the firfit section the circuit courts are given jurisdiction of controvm:sies between .citizens of different states in which the Platter in is of requisite SUlD or value. The act is a slovenly pieceofp,atch-workputupon thef!,ctofMarch 3,1875; but, reading the alld amendatql,'yacts side by side to discover what has been inserted iJ:], andwhat left out of the original act, the meaningofthe changes and thei;reffect seem tolerably plain. The. first section ·of the amenda. tory; act, like the first secti()n of the' original act, relates exclusively to original, jurisdictiopof the circuit court; and the second section of the; act,like second, section of the original act, relates ex-