OpenJurist

:MALONE V. RICHMOND &:

R. CO.

625

MALONE'll. RICHMOND

& D.

R.

Co.

(CHrc'Uit Com't, E. D. North Carolina.

August 1,1888.'

1.

REMOVAL OF CAUSES-LoCAL PREJUDICE-AMOUNT IN CONTROVERSY.

To entitle the defendantto remove acause, under the "local prejudice" clause of the act of "March 3. 1887. the matter in dispute must exceed the sum of $2.000, the limit prescribed by the act for the original jurisdiction of the circuit court. Such clause provides that it shall be "made to appear" to the circuit court that from" prejudice or local influence" the defendant will not be able to obtain justice in the state courts. lIeld. that it is the duty of the circuit court to examine into the truth oft.he facts alleged to support the grounds for removal, and to ascertain their existence. The simple affidavit by the defendant, stating, in general terms, the existence of such prejudice, and its effect, in the langnage of the statnte.-no opportunity having been given the plaintiff, by notice, to' controvert such statement,-ought not to be accepted as sufficient evidence of the fact. l

2.

SAME-PROCEDURE-ExISTENCE OF PREJUDICE-TRIAL.·

Application for Removal of Suit under the Act of March 3, 1887. D. Schenck, Olw.rles Price, and John N. Staples,. for petitioner.
HARLAN, Justice. The plaintiff in this suit, which was brought in the superior court of North Carolina for the county of Buncombe, is R citizen of this state. The defendant is a corporation created under the laws of Virginia. The object of the suit is to recover.statutory penalties, alleged to have accrued, under the statute, against the railroad company for non-shipment of certain personal property. The value of the matter in dispute is less than $2,000, exclusive of interest and costs. The time having passed for a removal of the suit silllPly on the ground of diverse citizenship, the defendant, without notice to the plaintiff, pre'sents here a petition for its removal into this court, upon the ground that, from prejudice or local influence, the company could not obtain justice in the court in which the suit was brought, or in any other court of North Carolina, to whic,h, under her laws, it may be removed on account of such prejudice or local influence. With the petition is filed theaffidavit of the third vice-president of the railroad company, in which he repeats the general statement as to its inability, on the grounds just stated,tooptain justice in the state courts. That affidavit constitutes all the evidence offered in support of the petition for removal. This application involves the construction of certain clauses ofthe act of March 3, 1887, amending the. act of March 3, 1875, a11d further regulating the jurisdiction of the circuit courts of the United tltates. 24 St. 552; 18 St. 470. The first section, among other things, specifies certain classes of suits of a civil nature of which those courts may take original cognizance, concurrent with the courts of the states. Among such suits are those involving controversies between citizAns of different stutes. In respect to Buits specified in that section, it is provided that the matter in
1 See

note at end of case, post, 683.

v.35F.no.9-40

I'EDEBAL REPORTER.

dispute, exclusive of interest and costs, shall exceed the sum or value of $2,000. 'fhe second section, which was evidently intended, though it is not so expressly declared, to take the place of the second section of the act of 1875/ provides, among other things, for the removal into the circuit court of the, "United States for the proper district, ofcertain classes of suits then pending or thereafter brought in a state court: (1) Suits of "a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties niade, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding sectionj" (2) "any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by ihe preceding section." In respect to the latter class of civil suits, pending or thereafter brought in any state court,it is provided that they "maybe removed into the circuit Qourt of the United, States for, the proper district by the defendant or defendants therein, being non-residents ,of that state; and when in any suit mentioned in this section thertlshall be a controversy which is wholly between citizens of different iltates',arid :which' can be fully determined as between them,1lhen either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court 'of the United 13tl1tes for the district." Itnrnediately following is 'this clause, iIi 'the same section: " " And where a suit is now pending, or may be hereafter brought, in anystate court, in which there is a controversy between a citizen of the state in which -the suit is brought and a of another state, any defendant, being such citizen of ,another state, may remove such suit into the circuit court of the United Sta'tEls for i;be,proper district, at any time before the trial when it shall be made to' appear to said circuit court that from prejudice or local ipfluence he will' not be able to obtain justice inliuch state court,or iJiany other state court to Which- the said defendant may, under the laws of the state; have the right, on3ccountof such prejudice or local influence, to remove said cause." It is clear from the above clauses, construing them all together, that the right ohemoval, at any time before trial, on the ground of prejudice Qrlocal influence, is restricted, by the act of .1887, to suits in which there is a controversy between citizens of different states; also that such 'right, in Buits9f that character, involving no federal question, now belongs only to the defendant Who is a citizen, or to the defendants who are citizeus,of a state other than that in which the suit is brought. And,! think it is equally clear that the right of removal on the ground of prejudice or'local influence does not e;x:ist in'any case unless the sUm or value of the matter in dispute exceeds $2,000, exclusive of interest and costs. 'The clauses of the second section of the act of 1887, -defining the different kinds of suits that may be removed,preserve the same elemenfof the value of the matter in dispute as is foundi.n the first section;' tEll'8.ting to the original jurisdiction of circuit courts. This 'is done by the provision giving the tight of removal in suits "of which 'the-circuit-cOurts of the· United States are given original jurisdiction
1 Bee

note at end of case, post, 629.

MALONE.

v.

RICHMOND &D. R. CO.

627

by·the preceding [first] section." i.ABby the 'first section the circuit court may take original cognizance, concurrent with the state courts, of all suits thereiu described, where the matter in dispute., exclusive of iuterest and costs, exceeds $2,000, the clauses in the second section, givthe right of removal in suits" of which the circuit courts of the United States are given original jurisdiction by the preceding section," necessarily restricts the right of removal to suits in which the value of the matter in dispute, exclusive of interest and costs, exceeds the above amount. It is,however, argued that, as the clause which specifies prejudice or local influence as an additional ground of removal in suits between citizens of different states, makes 'no mention of the value of the matter in dispute, the presumption is that congress intended to give the right oC removal in cases of that kind without reference to such value. In this view I am unable to concur. The .first clauses of section 2 describe, as to their subject-matter and the character of the parties, certain suits which may be removed from the state courts to the circuit courts of the United States, and, in the manner just indicated, attaches to the exercise of the right. of removal the condition that the value of the matter in dispute shall exceed a named amount. . The subsequent clause, relating to prejudice and local influence, does not describe a new class of suits., removal:>lefrom the state courts, but only specifies a distinct ground for removing one class of the suits .previously defined, namely, that class in which there isa controversy between citizens of different states. And that ground the defendant is at liberty to set up "at any time before the trial;" wherea!!, by the third section of the act, the right to remove, upon any other ground,will be lost, if not exercised at the time or before "the defendantis required by the laws of the state or the rule of the state court" in which the suit is brought" to answer or plead to the declaration or compla.int of the plaintiff." The clause prescribing prejudice or local influence as ground for the removal of a suit" in which there is a controversy between a citizen of the state in which the suit is brought and a'citizen of another state," cannot well be separated, in the process ofinterpretation, from the preceding clause in the same section, which, by referring to the first section, requires as a condition of the removal of a suit because of diverse citizenship-the only kind of suit in which the existence of prejudice or local influence. as affecting the. right of removal, is of any consequence-that the matter in dispute shall exceed in value $2,000, exclm1-ive of interest and costs. If in such suits having the required amount in dispute it is made to appear to the circuit court that prejudice or local influence will prevent the defendant, who is a citizen of another state, from obtaining justice in the state courts, then the right of removal may be exercised" at any time before the trial." There is nothing ip the previous legislation of to justify a different inter.. pretation of the act of 1887 from the one the court now gives. When the right of removal on the ground of prejudice or local influence wall conferredbytheeact of 1867, (14 St. 558,) congress attached the condition that matter in dispute should exoeedthe sum of 8500,-the amount

628

FEDERAL REPORTER.

then required f'or the original jurisdiction of' the circuit courts of the United States in suits between citizens of different states. That condition was continued in the Revised Statutes of the United States, (section 639;) and there is nothing in recent legislation to warrant the conclusion that congress intended to authorize the removal from a state court of a civil suit or controversy between citizens of different states, upon the ground of prejudice or local influence, when the same suit could not, because of the small value in dispute, have been brought in a circuit court of the United States. The present application must be denied upon the further ground that it has not been "made to appear" to this court that the defendant will be unable to obtain justice in the state court. The act of 1887 makes a radical change in the previous law regulating the removal of causes from the state courts upon the ground of prejudice or local influence. Under the act of 1867, the provisions of which were preserved in the Revised Statutes, § 639, when the citizen of another state, whether plaintiff or defendant in a suit in a state court involving $500, exclusive of costs,the other party being a citizen of the state in which the suit was brought,":"""" filed in that court an affidavit; stating that he had reason to believe, and did believe, that on account of prejudice or local influence he could not obtain justice in such court, and offered good and sufficient surety to do certain specified things, the jurisdiction of the state court to proceed further in the suit immediately ceased; and upon the suit being formally entered in the circuit court of the United States, it became the duty of the latter court to proceed as if it had been brought therein by original process. Whether prejudice or local influence, preventing justice being done, really existed, was not left open by the act of 1867, or by the Re. vised Statutes, for investigation by the circuit court. In other words, the statute in force prior to the act of 188'7 made the removal in cases of that character depend upon the filing of the necessary affidavit in the state court, and the giving there of the required bone}. But under the act of 1887 neither affidavit nor petition is required to be. filed in the state court, but it is to be "made to appear" to the circuit court, into which it is sought to remove the case, that, from prejudice or local influence, the defendant asking the removal will not be able to obtain jus;. tice in the state court. The statute does not prescribe how such fact is to be established; nevertheless, it is to be "made to appear" in some proper form to the circuit court. I think it competent for the circuit court to receive evidence upon the point by affidavits, or by depositions. or by means of an oral examination of witnesses in its presence.. If the mere ex parte affidavit of an officer of a corporation, stating generally that from prejudice or locnl influence it cannot obtain justice in the state court, but not setting forth any facts of a definite character, is held to establish the right of removal, it is easy to perceive that the .requirement that the existence of such prej ud ice or local uence shall be" made to nullified. It seems to appear" to the Circuit court would be me that those; words im port a duty upon the part of the circuit court to investigate. or examine the facts upon which an alleged inability to. ob.

MA.LONE V. RICHMOND & D. R. CO.

629

tain justice in the state court must rest. And although such investigation or examination is not required, by any express words of the statute, to be had upon notice to the party against whom the removal is asked, such notice will best accomplish the object which congress had in view'. This interpretation is sustained by the clause in the second section, referring to cases pending in the circuit COUtt at the time the act of 18"87 was passed, or which were, after that date, entered therein, and were removed upon the plaintiff's affidavit as to prejudice or local influence. That clause makes it the duty of the circuit court, "on application of the other party," to "examine into the truth of said affidavit, and the thereof," and to rellland the case to the state court, "unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such state court." It can hardly be supposed that the court in such cases must examine into the grounds of removal, and be satisfied that they really existed, while in cases sought to be removed by a defendant, after the passage of the ltCt of 1887" its duty be performed by ordering a removal, with no oth,er basis for its action than an ex parte affidavit of prejudice or local influence-made by a defendant, if a natural person, or by one of its officers, if a corporation. I am of opinion that congress did not intend to invest the circuit courts of the United States with authority to take cognizal'lce ofa case pending in a state court upon the ground of prejudice or local influence ' the defendant, a citizen of another state, unless the circuit court, in some, proper way, found as a fact that such prejudice or local influence existed. And the simple affidavit by an officer of a defendant corporation, stating in general terms that it cannot, from prejudice or local influence, obtain justice in the state courts,-no opportunity having been given to the plaintiff, by o('ltice, to controvert such statement,-ought not to be accepted as sufficient evidence of that fact. Upon both of the grounds hereinbefore stated the petition asking such orders as may be requisite to bring this case into the circuit court of the United States is denied. l
NOTE. Since this decision was rendered congrllSS bas passed an act (August 13, 1888) correcting the enrollment of the act of March 3, 1887, as it appears in 24; St. 552. By the last act it is maue to appear expressly:that the second section of the act of March 3, 1887, was intended to. take the place of the second seati,on of the act o'fMarch 3, 1875, (18 St. 470.) Tile act of August 13, 1888, is as follows: " An act to correct the e.nrollment of an act approved March 3, 1887,entitled 'An act to amend Ilections 1, 2, 3, anu 10 of an act to, determine lhe jurisdiction of the circuit courts of the United States" and to regulate the re,movalof causes from the state courts, and for other purposes, approveo. " · ,March 3, 1875.' it enacted by the, senate and ,house of representatives of the United States of America in congJ:essassembled, that the act approved March'S, 1887,

,'Similar petitions for removal were presented at the same time in the followingJcases ' pending in the QOurtBofN,orth Carolina: H. M. Bennett and W£!e v; R£ehmondand Danville Railroad C071j,pOin;v; John Swij't'sA4m'rs v. Same; W. F. Btonei"v;Same; .andHenry H. Hayes 'Same, (two Cases.) They were all denied for the reasqns stated opinion., " '_ " , ....

v,

680,)

'lfE:DERALREl'OltTER.

"An act to :amend sections 1,2, 3, and 10 of an act to determine the of the circuit courts of the Ul'lited States, and to regulate the re, maval ofcau,ses from state courts, and for other purposes, approved March 3, 1875,' be, and the same is hereby, amended so as to read as follows: 'Be it enacted by the senate and hbuse of representatives of the United States of America in congress assembled, that the first section of an act entitled" An act to determine the jurisdiction of cirCUit courts of the United States, and to regulate the removal of causes from state courts, and for other purposes," approved March 3, 1875, be, and the same is hereby, amended so as to read as follows: That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in eqlHty, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the constitution dl'laws of the United states, or treaties made, or which shall be made, under their authority, or in which controversy the United ,states are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states, in Which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, or"a controversy betWeen citizens of the same state claiming lands under grants of different states, or a controverl!ybetween citizens of a state and foreij;(n states, citizens, or subjects, in which the mattllr in dIspute exceeds, exclusive of interestand costs, the SUIll or valueaforesaidjand shall have exclusive cogniZl;lnCl: of all crimes and offenses cognizable under the authority of the United States, except as otherwise prOVided bylaw, and concurrent jurisdiction with the district courts of the crimes and offlmses cognizable by them. But no person lilhall be anested in one district for trial in another in any civil action before acit'cu'it or district court; and no· civil suit shall be brought before either of said COlltts against any person by any original process or proceeding in anyothel',districtthanthat whereof he is an inhabitant, but, where the jurisdIction founded only on fact that theaction is between citizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendant. Nor shall any circuit or district court have cognizance of any suit, except upon foreij;(h bills of exchange, to recOver the contents of any promissory note or other chose in action in favor of any assignee, or of auy'subsequent holder, if such instrument bp payable to bearer, and be-not made by any cQrporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made. And the circuit courts shall also have appellate jUl'isdiction from the district courts. under the regulations and restrictions prescribed by

law.'

'

"That"the second section of said act be,and the same is hereby, amended ' so as to read as follows: "'Sec. 2. That any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States. or treaties made, or which shall be made, under their authority, of which the cil'cuit courts of the United States are given original jurisdiction by the,precedi ng section, which may noW be pending, or which may hereaftel' be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States fOl' the proper district. Any other suit of a civil nature, at law or in equity, of which the cirCUit conrtsof theUnited'States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non·residents of that state. And when in any suit mentioned in be a controve,:sywhich is Wholly between citizens of different states, and which can be fully determined as between

MALO:NE1I.RICHM08D & D. R. CO.

:631

then .either one or more of th\! defendants actually interested In sQchcontroversy may remove said suit into the circuit court of the United States for the proper district. . And where a sllit is now pending, or may be hereafter brought, in any stata, court. in which there is a controversy between a citi,zen of the state in which the suit is brougijt and a citizen of another state. any defendant. being such citizen of another state. may remove such suit into the circuit oOl.l:rt of the United States for the proper di:strict. at any time before the trial thereof. when it shall be made to appear to said circuit court that from prejudice or local influence .he will not be able to obtain justice in such, state court,or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such preju4ice or .10cal influence. to remove said cause: prQvided, that if it furthllr appear that said suit can be fully and justly determined as to the other defendan ts in the state court, without being affected by such prejudice or local influence, and that no party to the s\1it will be prejudiced by Rseparation of: the parties. 'said circuit court maY direct the suit to be remanded. so far as relates to such other defendants, to t1:l6state court, to he proceeded with therein. ,At anytime befQrethetrial of any suit 'Which is now pending in any circuit COllrt, or may hereMter be, entered therein, and which has been removed to said cC)Ul't fJ:om a state court on the adidavit of any partypWutifl' that he bad reason to believe. and did believe, from prejudice Or local inlluence he WlilJ unable to obtain justice iI;l sllid,!ltate .cQurt, the circuit couJ;t shalt, onapplilmtjC)o of the' otherpal'ty, examin.e lnto, the truth. ofllaidaffidavit and the, grounds. unless it shall appear to the satisfaction of said court;. libatsaiejl party wi]] not be able to obtain justice in such state court, it; shall causetheeame to be remanded thereto. Whenever any cause shall be removed from anY COl,1:rt into anY circuit t;lOlut oftiJe United States. and the circuit, COllrt:shall dElcil'lelilll:\t:the caus.e Wall improperly remov6l;\, and order the !lame to :be remanded,'to the,sta,te cOllrMrQln. whence it, came, such remand shall. be inllnediatelycarried ,into eX6ClMion,'and no.appeal orwritof errorfromtiledecisioD,of thecjrcuit court so remanding such cause shall be allowed.' '.. ., ' "Thats6Ction three of said act be, and the samei&:hereby,ameI;lded'so as to rell;(l.jis,follows:, ,;.., , " H'SeC' 3. whenever any party entitled til remllMe any suit mentioned in the next precedi ng section, except in !luch cases. RSare proyided for in the last ,clause ofsaid section, may,desire to remove such suitJrom a state ,court to the circuit <lonrt of the United States. he may ma.ke andfHe a petition in sucb suit in sucb state couri at tbe time, or any time before,the'defendant, is required by the laws of the lltate or the rule of the sta.te OOl1rt in which suit is bronght to answer or plead to the declaration or COmplaint of the plaintiff, for the :remp;val of such llui,t into the circuit court tll beheldin the dilltrict where such suit is pending. and shall make and file therewith a bond, with gQOd and sufficiel)t surety. for his or their entering in lluchcircuit court. on the first , day of itsthen next session, a c<>py of the record in stlch suit, and for paying all co$! that maybell,warded by the said circuit court if said Court shall hold that such suit was wrongfully or improperly removed thereto, and also for tbeir appeal'ing' and entering special bail in such suit if special bail was originaUy J'eqmsite therein. It !lhall then be the duty of the lltate.colll1t. to accept said petition and bond. and proceed no further in such suit; ,and, the said copy being entered as aforesaid in said circuit court of the Uni,ted States, the cap,se proceed in the same manner as if, it; had been originaUycommence4 ipthe said circuit court, And if in any action .QOmmenced in, a state land be concel'ned, and the, parties are citizeU&,ot tha Imme statll,lloQd in dispute exceed the llU.lll. 0):' tUQU,Sllond dollars, exclusive of interest and costs, the sum or Valuebeing,rnadetlnlppear, , .oneoJ'moJe.:ot trialj;;ll).ay;atate to the

632

FEDERAL REPORTER.

court, and make affidavit if the court require it, that he or they claim and shall rely upon a right or title to the land under a grant from a state, and produce the original grant, or an exemplification of it, except where the loss of pnblic records shall put it out of his or their power, and shall move that anyone or more of the adverse party inform the court whether he or they claim a right. or title to the land under a grant from some other state, the party or parties so required shaH give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial; and if he or they inform that he or they do claim under such grant, anyone or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this act, remove the cause for trial to the circuit court of the United States next to be holden in such district; and anyone of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim.' '" Sec. 2. That whenever in any cause pendmg in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property accordmg to the requirements of the valid laws of the state in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall willfully violate the provisions of this section shall be deemed guilty of a misdemeanor,. and shall, on conviction thereof, be punished by a line not exceeding three thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. "'Hec.3. That every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice. "'Sec. 4. That all national banking associations established under the laws. of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would havE!' in cases between individual citizens of the same state. The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any oflicerthereof, or cases for winding up the affairs of any such bank. '" Sec. 5. That nothing in this act shall be held, deemed, or construed torepeal or affect any jurisdiction or right mentioned either in sections 641, or in 642, or in 643, or in 722, or in title 24 of the Revised st(ttutes of the United States, or mentioned in section 8 of the act of congress of which this act is. an amendment, or in the act of congrt'ss approved March 1,1875, entitled" An act to protect all citizens in their civil and legal rights." ", Sec. 6. That the last paragraph of section 5 of the act of congress approved March 3, 1875, entitled" An act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from state courts, and for other purposes," and section 640 of the Revised Statutes, and all laws anI! parts of laws in conflict with the provisions of this act, be, and the same are hereby, repealed: provided, that this act shall not affect the jurisdiction over, urdisposition of, any suit removed from the court of any state, or suitcomme!1ced in any court of the United States, before the passage hereof, except as otherwise expressly provided in this act. "·8ec.7. That no person related to any justice or judge of any court of the

MALONE V. RICHMOND & D. R. CO.

633

NOTE. REMOVAL OF CAUSES-PREJUDICE OR LOCAL INFLUENCE-AoT MARCH 3, 1887. The construction of the "prejudice or local influence" clause of the removal act of March 3, 1887, has given rise to a difference of opinion among the various courts, as will be seen from tile following review of cases bearing upon that subject: In the ,case of Fisk v. Henarie, 32 Fed. Rep. 417, DEADY, J., in delivering his ion, says: "It was competent for 'congress to have authorized the removal of the case on the diverse citizenship of tbe parties alone. But it has seen proper to require in addition the oath of the applicant for removal that be believes he cannot obtain justice in tbe state tribunal, on aocount of prejudice or local influence. Any fact, the existence of which is made a condition ,precedent to the removal of a case, and which ia also necessaryro the jurisdiction of the circuit court, may be controverted by the party against Whom such removal is had. But the proper mode of doing this is not by aflidavits, but by a dilatory plea, in the nature of a plea to the jurisdiction, on which the question may be submitted to a jury for determination. But the aflidavit of the defendants concerning their belief as to their ability to obtain justice in the state tribunals is not a jurisdictional matter, but only a condition precedent to their of removal. * * * And in my judgment, when such affidavit is made and filed III the manner and terms prescribed by the statute, the condition is ,performed, and,the.truth of the matter is not open to question." He also says tbat it is sufficient for defendants to make oath that they believe they cannot obtalll justice in the state courts because of prejudice and local infiuence, without setting forth the facts or circumstances onwhich,such belief is founded. The ruling in this case is expressly disapproved of in Short v. Railway Co., 34 Fed: Rep. 225, where it is held that the act of l887, with respect to prejudiceand local infiuence, was intended to supersede entirely the act of 1867, under which act tb,e filing of an affidavit by either plaintiff or defendant, stating that affiant had real\On to believe and did believe that from prejudice or local influence he would not be able to ()btain justice in tbe state court, was sufficient to warrant a removal; BREWER, J., in the latter case, ruling that an afII.davit by a defendant in conformity to the, act of 1867 is msufllcient under the act of 1887, and, after quoting the clause of the latter act bearing upon the subject, says: "It is not given to the party upon his conscience to .say he believes, or has reason to believe,that such prejudice exists, and thereby beCOme entitled to a removal; but there is a question of fact which the circuit court must determine, and it cannot order the removal until it appears that such prejudice or local' influence exists." He, however, intimates obiter that "an affidavit alleging i,n plain and unequivocal terms that such local prejudice does exist, and that a fair trial cannot l:!e had, would entitle the party to a removal, " if the truth of such afII.davit is not challenl$"edl but says that the party opposing may come in and traverse the allegation, of preJudlCe the same as any other averment of fact. In Hills v. Railroad Co., 33 Fed. Rep. 81, NEWMAN, J., rules in accord,ance With the hplding in Fisk v., B;enarie, supra tha:t the law as itformerl;v existed in regard tQ removalssought by defendants, on the ground of local preJudlCe, is not changed by the oact of 1887. The decision, o;f Henarie is aft\rmed lD 85 Fed. Rep. 280, on motion fpr new trial, and LlJ!;A:OY, J., takes ,issue with the ruling in Short v. Railway Co., Bu,pra, arid says: "In fact,'the difference between saying, 'I believe I cannot in the state court on account of pl'Ef,judice and local Influence,, and' I cannot get Justice in the state court,' etc., withoutsayiJ;lg whether I believe it or not, in my Q.umble opin, ion is the difference between tweedleuumand tweedledee. n Where defendants file'an afII.davit for removal under the local prejudice clause of the .act of1887, a plea by plaintiffs simply denying defendant's belief in the existence of such prejudice or local influence is insufficient, and raises no issue on that question. In order to do so, the plea should aflirm that no such prejudice or local influence exists. .county Court of Taylor Co. v. Railroad Co., 35 Fed. Rep.161. , TQe affidavit for removal :under this clause should be made by the party in person, if a natural person, and a removal cannot be had upon an affidavit made by his attorney, agent, or other person in his behalf. Duff v. Duff, 31 Fed. Rep. 772.

States, by affinity or consanguinity, within the degree of first cousin, hereafter beappointed by such court or judge to, or employed by such court or judge in, any office or duty in any court of which such justice or judge may be a member.'"

:

634
I "

FEDERAL REPORTER.

,

,

CROIX LUMBER

nRONSO:i

et ale .". ST.

Co.

(Oircuit Oourt,

n. Minnesota.

June 27,1888.)

1.

REMOVAL' OF CAUAES-CITIZENSHIP-INTERVENORs-REi'LEVIN.

An action of replevin between citizens of the same state is not removable to the federal courts by reason of the non-residence of one from whom defendant purchased the property, and who intervenes to protect the defend· anVs title.

2. SAME-REMAND-WAIVER OF RIGHT-LACHES.

Where the question is as to the right of removal from a state to a federal court,and not as to mere defects in the proceedings for removal, lapiie of time and the taking of preliminary proceedings after removal are not a waiver of the right to a remand.

Motion to Remand. Mar8h& SearleB, for plaintiffs. Warner & Lawre:nce, for defendant.
BREWER, J. This is a motion to remand. The, facts are as follows:, Plaintiffs, citizens of the stll.teof Minnesota, claiming to be the ownets of some logs; commenced this action of replevin against' the St. Croix Lumber Company, also a citizen of the state of Minnesota, the party in whose possession the logs were. ,Service was made and issue joined. Tllereafter, by leave of court" a defendant by the name of Wing intervened. He had sold the logs to the St. Croix Lumber Company, and was notified by that company to defend the suit. In pursuance of this notice, and by leave of court, ha intervened, setting up his original title,and that he was, a citizen, of the state of Wisconsin. Upon his petition, after the filing of a bond, the C1tS6 was transferred to this court; aDd nowp1aintift's 'ttlOveto remand it, on the ground that there is no separable controversy. 1'be gist of the action of replevin 'is the possession of the property, and the aotion lies against the party in possession. In this case, the party claiming to be theowner and in possession were both of the state of Minnesota; and as between them, of course, it is a100al action, and not removable. Wing, the intervenor, ,claims nothing independent of the origihal plaintiff' and defendant; asserts no rightsantagonistic to those of the defendant. He simply says he was the vendor of the logs to the original defendant, and is here to protect him in his possession. Whatever doubts may have exis.ted in times past, it is now settled that such a case as this presents no separable controversy. In the case of Wilson v. Railway Co., which was decided in the circuit court for the Eastern district of Missouri, and reported in 22 Fed. Rep. 3, the court said: "If a non-resident party has an interest in a controversy which is separate and distinct,and does not necessarilJ'involve tbe interest of the otber defendants in the issue, or the other party on the same side. he can remove the whole case into the federal courts. On the other hand, if the interests of the other parties are so identified, and so mixed up, that they must and should be con-