ROBISON 11. HARDY.
v. ,HARDY et ale
(Oircuit Oourt, N. D. Illinois. March 18, 1889.)
REMOVAL OF CAUSES-LoCAL PREJUDICE-AFFIDAVIT.
An affidavit for the removal of an action for false imprisonment from the circuit court of Cook county, III., to the United States circuit court, alleged that there had been four long jury trials involving these matters before the circuit court of Cook county, a hearing before a justice of the peace, the grand jury, the appellate court, and the directors of the board of trade; that the case involved the manner of doing business on the board of trade; that i,t had caused a goreat deal of talk around the court-house. and had become widely known; that many warehousemen. elevator men, brokers, commission men, and many thousands of people in and around Oook county had discussed it. and that through the influence of plaintiff and his friends. defendants believed a prejudice had grown up against them, who were non-residents. Held that, as the Illinois statute provides that a cause may be removed for local prejudice to some other court of competent jurisdiction in some other convenient county, to which there is no valid objection, the existence of, prejudice was not sufficiently shown to justify removal to the federal court; the affidavit shows that the prejudice is confined mainly, if not entirely, to Cook county.
Application for Removal. M. S. Robinson, in pro. per. BiBbee, Ahrfm8 &- Decker, for defendants.
BLODGETT, J. This is an application to this court for nn order for the removal of this case from the circuit court of Cook county, in the state of illinois, where the same was commenced, to this court, on the ground of prejudice or local influence against the defendants,-the defendants being citizf>ns of the state of Indiana, and the plaintiff a citizen of the state of Illinois. In Malone v. Railroad Co., 35 Fed. Rep. 625, it was held by Mr. Justice HARLAN that the "circuit courts of the United States cannot take cognizance of a case pending in a state court upon the ground of prejudice or local influence against the defendant, a citizen of another state, unless the circuit court in some proper way finds as a fact that such prejudice or local influence exists;" and the question is whether the defendants have made such proof as brings the application for removal within the principle laid down by the learned justice. The suit is an action on the case for false imprisonment, the declaration charging, in substance, that the defendants wrongfully, maliciously, and without probable cause, caused the arrest of the plaintiff under certain proceedings instituted pursuant to the criminal laws of the state of Illinois. The second section of the act of congress approved March 3. 1887, in 'regard to the removal of cases from the state to the federal courts, as the same is corrected and explained by the act of August 13, 1888, provides for the removal of causes from the state courts to the circuit courts of the United States, where the citizenship will allow the same, when it shall be made to appear to said circuit court that from prejudice or local in'fluence the defendant will not be able to obtain justice in such state court, or in any other state court to which said defendant may, under the laws
of the state, have the right, on account of such prejudice or local influence, to remove the said cause; andlhe statute of the state of Illinois in regard to the change of venue of causes provides that" where either party shall fear that he will not receive a fair trial in the court in which the suit or proceeding is pending because the inhabitants of the county are, or the judge is, prejudiced agllinst him, or the adverse party has an undue influence over the minds of the the court may change the venue of the case to some other court of competent juril>diction in some other convenient COluity to which there is no valid objection. Rev. St. Ill. c.146, § 1. The .affidavit filed· in support of the petition for removal sets out, quite at length, the commencement and prosecution of several suits at l""w between the parties to this suit, and the trial of those causes before the circuit court of Cook county, and a hearing before the arbitration committee of the Chicago board of trade, and'a trial beforaa justice ()f the peace, and tilen proceeds: .. Affiants fu·rther show that the four long jury trials involVing these matters in the circuit court of this county. and the hearing' before Justice LYON, before the grand jury, before tbedirectors of the board of trade. and before the appellate court, and the various interlocutory hearings and motions for new tli· als. have each made a great deal of talk and about the court-house in this city, and in this county, and on the board of trade in this citY"and a very large number of jurymen have been questioned and have heard the case, and that the case has become :very widely known and understool1;,and there has been a great deal of talk about it on the board of trade. That the questions involved affected, the manner of doing business on the Chicagobqard of trade, and especially the greatest thing of aU ,was on the question of (ringing up' trades; ... Ijc Ijc ahd many warehousemen; elevator'men, commission men, and many' thousands of people in this county, and &ven the surrounding couJ;1ties, who have ·kllown of this case, have discuslledit,and affiants believe that through thfl. in,fluence of Robison andl:iis friendsa,nd other warehousemen" commission merchants, brokers, family associations, 'and business associatibris, a prejurlice has grownup against defendants, w!Jo in Indiana, and who have no means of counteracting or overcotningsuch iiifinence, so that prejudice exists in COok county and the adjoining counties to such an extent that these defendants do not and cannot obtain' a fair atid impartial hearing in the county of Oook, or in the state court ofCookconoty" or in any county to which said cause could be removed by change of venue under the state laws." While the allegations hi this affidavit are perhaps broad enough to bring the case within the l('tterof the statute as to the existence ofprejudioo and local influeJl.ce adverse to the·defendants in Cook county and any county to which the cause may be removed under the statelaws;.a careful of the reasons assigned for the existence of this prejudice and local influence sQOWS very clearly that it is confined mainly, if not ,entirely, to the county of Cook, where these former trials hav:e taken place, and that it does not necessarily and properly existin any of the adjoining countieaoutside of Cook county and the city of Chicago. I can har<Hy. upderstandthat, the. trials of the several controversies bet\Veen in the local courts of Cook county. could have created 59 wiuesprl¥d a the merits of this case, or caused indifferlint ParSOIlS. to npon .the same to such an extent as to
prevent the.defendants from obtaining a fair and impartial trial in some convenient county of the state to which the court, under.the state law, might send the cause. The. influence of the plaintiff and of his associates upon the Chicago board of trade could hardly, in the nature of things, be felt beyond the immediate locality where the board of trade does business and the city of Chicago. I can hardly deem it possible that public opinion could have been so far prejudiced against these defendants by anything which might have occurred in the progress of this litigation in the state courts as to have reached the adjacent counties, Of, in the language of the law, "the convenient" counties of the state to which the court might send this cause for trial, on being satisfied that the defendants cannot obtain a fair trial in Cook county. I do not, therefore, think that the existence of prejudice Of local influence against the defendants is shown to exist, as a matter of fact, to such an extent as to justify this court in taking cognizance of the case. The motion for a certiorari to remove the cause from the state court to this court is thereiore overruled.
(Oircuit Oourt. :E. D. WiBconlin. March 19. 1889.)
Separate answers tendel'ing separate. issues intel'posed by defendants. jointly do not create separable. controversies, within the meaning of the reo moval acts. '. 8.S:AME..-.NON,SERVICE OF JOINT DEFENDANT. Where. in a suit against a resident liVing within the district and a non-resi· dent. the ca.use of action. declared upon is. joint. the non·service of prOCeSS .upon' the resident does not challge the character of the suit so as to entitle the non"resident to have it removed as for a separable controversy.
Noris thejul'isdiction of the federal court in SUCh case aided by U. S.§ 787·. authorizing the court to entertain jUl'isdiction as to parti.es pl'Op· eTly before it, notwithstanding the absence of necessary parties not inhabitants of. nor found within. the district wher:esuit is brought. and providing that noD·joinder of such parties shall not constitute matter of abatement or objection to the suit.
At Law. On motion to remand. Action by M. B. Patchin against W.W. Hunter and John H. Parks, originally-brought in the state court, and by defendant Parks removed.'to tbiscourt. Geb. P · .Miller; for plaintiff. H. Webster, for defendant ParkS. ·:Before GRESHAM and J J. JENKINS,J; The plaintiff, a citizen of Wisconsin, brought sqit in the circuit cOurt Wis., against the defendant Ilunter,a citizen of, and· resident· within' the' Eastern district· of Wisconsin, 'and