. DENNISON tI. BROWN.
DENNISON V. BROWN·
. (Oircuit (JO'/lrl,}:r.
:po NfIIJJ York.
April 18, 1889.)
'L REMOVAL OF C.iUSES-LobAL PREJUDICE.
Uriderthe)act of March 8.1887, providing for a removal when it shall be to the circuiteonrt that from prejudice or local influence defendant wjn not be able to obtain justice state court. thll questi()n '. whether tliereis prejudice, etc., is open tohiqUlry, and may be det.ermined from the evidence produced by both parties 011 motion: to remand. " 2, SAME. An affidavit that defendant has no acquaintance in the county in which the trial in the state court will be had; that plaintiff is well known there as a lawyer and politician, having lived and practiced law at the county-seat many years, and having been a candidate for the office of attorney general of the state,-does not make a case for removaL
On Motion to Remand. James A. Denri.i8on; forplaintifl'. Charles A. 'l'alcott, for defendant.
'J .This suit was removed from the UpOOl the "petition ofthedefendant, door the cause was at issue,'accompanied by an defendant setting forth his belief .tpat f:rom andJocaUnfluence he would not be able to obtain justice such ':State 'OOur,t.>The·affidavit I;\tatesas the 'reasons forsuch belieftQlttthe Qefendabt, whB Ii state. has nO 'in: in which the case will be tried, if tried in the state court, and that the plaintiff is well known there as a lawyer l1nq.,as.l'Io poFtician, having ; tP.fl ;poqnty-seat. D;lany. years, .practiced law and been a fpr the, oflice of attorney general of the state. The presen,t thel>uit proceeds upon the ground ,ef. the does. not,staW· facts it appear that· froJD, . ptejudice influence he will not be able to. obtain justiCe .. the state court, and is. supported by affidavits in .rebuttal of the defendapt's ". ' .. . . · . .The of}4lilJch ,3, 1887 ,relating to. jurisdiction of th.e cirquit a,judicious in the p.rpvisionof the third PAracoprt. gi:aIlh 6.39, Rev.· St. U. S., by whi.ch in a ,zen ofthes1;a.te and a citizen of another state the defendant remove ,and: 'Qondition of .removal is .110 longer the filing an.l1ffi!lavit ,"4as reason to and d()es believe" o:r,from Ipc.a1 influence he will not be able. t()obtain .Jl1StiCP. but ,he must now make, it" to "to, a c:u;e exists! Tl}e phraileology of . WAS to render it at lea,st doubtful whether the adverse party could ,controvertJhetruth or wl},ether it was 'necessary forth the facts sufficignt grounds is '!P1a,inly! C!r9ijjt fllctSa:ppear th!'lexYs,oollce :gf ... ' . . '. .. . '.' .
such prejudice or local influence as will preclude a defendant from obtaining justice in the state court. This is a question of fact which, like all other questions of fact, may be determined by the evidence produced by both parties at the hearing of a motion to remand the cause. It would be an insult to the intelligence and integrity Of the state court from which this suit was removed-a tribunal which highest original jurisdiction-to adjudge that the defendant, 'upon the showing made in his affidavit, will, not be able to obtain justice in that court. The motion, to' remand is granted" with costs.
(Oif'euit Court, S. D. NeuJ York. April 16. 1889.)
REMOVAL Oll' CAUSES-LoOAL PREJUDIOE-REQUISITES 011' ApPLICATION.
Under act Congo March 8, 1887, providing for the removal of controversies between citizens of different states on the application 'of a defendant when 'it shal1be "made to appear" that a fair trial cannot be had in the state court wherein the action is pending, or other to which it may btl removed under the state law, it is not suflicient' that defendant swears positively that such prejudice. etc., exists so as to render a fair trial in any state court impossible,without showing the facts on which the averment Is based. as the act mentioned is a substitute for the act of 1867, which only requ;ired the belief of the applicant in such prejudice to'beshown.
Philip aupenter, for petitioner. LACOMBE, J. This is an application for a certiorari upon a petition and affidavit, stating that defendant "has reason to believe, and does believe, that from prejudice and local influence he will not be able to obtain justice in the state eou.rt in which the action is brought, or in any other state court to which he may able to remove the action." Defendant seeks to remove the cause from the supreme court of the state into this court. The questhm whether, since the passage of the act of March 3, 1887, he is entitled to do so upon an affidavit such as that now submitted, has been the subject of judicial consideration in several cases. P.sk v. Henarie, 32 Fed. Rep: 417; Hilla ,v. Railroad Co., 33 Fed; Rep. 81; Short v. Railroad, Id.114; Whelan v. Railroad Co., 35 Fed, Rep. 849; SouthworlJl,v. Reid, 36 Fed. Rep. 431; HU8kina v. Railway Co., 37 Fed. Rep. 504. In the Fifth, Sixth, and Ninthcircuits it has been held that a defendant can remove his ca.use on such ltn "affidavit. In the Seventh and Eighth circuits ithns been' held that he, ,cannot. I concur in views expressed byJudge BREWER in Short v.Railroad, that the actof 1887 with respect to prejudice and local in"finence,was intended to Bupersedeentirely the act of 1867, and to plant. :the matter upon a new basis; and that before a removal can be had on the ground of prejudice or loeaJ influence there must be shown to the. .'circuit court of the United States the existence of such prejudice or local