M. & ST,P'"RY. CO.
P. Ry. Co.
(Oircuit (Jourt, N. D. Iowa,
REMOVAL OF CAUSES-LoCAL PREJUDICE-PLEADING.
SmRAS, J. The defendant seeks an order for the removal of this cause from the district court of Clay county into this court, under what is known in common parlauce as the "local prejudice elause" of the statute. The petition sets forth the citizpnship of the respective parties, the nature of the snit, and then avers that "your petitioner cannot obtain justice in the said district court of Clay county, nor in any state court in the state of Iowa to which said cause could be removed." The affi· davits filed with the petition simply state that"from prejudice and local influence said defendant will not be able to obtain justice," etc. The showing thus made is insufficient. In the petition itself it is not averred that there exists either or Jocal influence; the averment being only that the defendant cannot obtain justice in the state court. While it may be said that by reading the petition and affidavits together it may be fairly inferred that it is intended to allege that prejudice. or local influence exists, and by reason thereof the party cannot obtain· justice in the state courts, still L think that the averment should beelear and positive, and not a matter of inference. The petition is filed as the basis for the action of the court. If the court should now grant an order for the removal of the cause for the reasons assigned in the petition, it would not appear upon what ground the court proceeded. The statute contains two gronnds of removal, i. e., prejudice, local influence. I f by reason of the existence of either ground, or both, justice cannot be had in the state courts, then the right of removal exists. The however, should directly aver the existen<:e of prejudice against the party seeking the removal, or of local influence exerted by the adversary party, and, as a consequence thereof, an inability to obtain justice in the state court. Furthermore, the affidavits submitted with the petition· should state facts supporting the averments of the petition, and not merely the oonclusion stated in the language of the statute, as is the case in the present application. For the reasons stated the petition presented in this cause must be held insufficient, and the order of removal cannot b. granted.
cOtrllttlt (Jour'. N. D. Iowa. E. D.
BlwoVALOJl', ,.CAUSlllS-SlllPARA.BLlllCQNTROVEJ,tSy-NOIDNAL PARTIES.
a citizen of Io,,!'.1l1ed a !Jill thll;t a judgm!!'nt had bllllnfraudulentlyobtained agaInst the CIty of Cedar RapIds, Iowa, In favor of q.efeitdant:s.. a non-resident, by means of a combination between him and o.tllers I;Iartiel\ to the bill. The relief sought was to have the judgment declared void. The mayor, treasurer, and re.corder of the city were made defendants, that they might be restrained from }Jaying the judgment pendente liu. but it was not charged that they participated in the fraud, orthat they had any interest adverse to complainant. Held that, though there was no separable controversy between complainant and S., the other defendants , .were only nominal parties, their interest i.n fact adverse to S., and their joitJderall'defendantll could notldect the right of·S. w have the ClI.UBe retnov.8(1., ;. ..
. In Equity. Bill to cancel judgment. Her&ryRickel, for complainant.
SltIRA!8'1J·· ' ,This suit was originally. commenced. in the district court of. Linn Ooun.ty, Iowa, and was thence removed to this courl; upon the petition' of the defendantSt; John. The originlil bill charged that a judgment against fJ:1e city of Cedar Rapids had been fraudulentlyobtained upon certain illeglil wa.rrants issued by said city, and that a tax for the payment thereof hadlevied and was being collected, 'lind the coinplainant,as a residerit property owner and tax-payer, prayed an injunction· .restraining ·the collection of such tax, and also for a decree setting aside the judgment against the city. To this bill St. John, the owner-ofthejudgment, the mayor,recorder"and treasurer of the city, were made defendants. and upon motion in the state court a prelin1inary irijunction was granted. Upon the removal of the cause into this court, a motionto dissolve the injunction and demurrers to the bill were filed, and thereupon 'the oomplainant filed an amended and substituted bill of complaint, to .which H. W. St.John is. lilone made a defendant,.and Wihichprays .thaMhe judgment. ap;ainst the city of Cedar Rapids. be canceledand set, aside, and that a judgment in favor of the complainant for the .ul'\6of aaid city: of Cedar Rapids be entered against the defendant St. John for tbeamoUilt of money which he has heretofore collected. on judgment.' .TheJmotion to dissolve the preliminary injuDctioD Ilnd1 the demurrer,to the amended bill coming up for heaping, the court suggested the query"whetbel' the cause was one properly removable from thesta.te QQUHiI andcounseUor defendant has submitted brief on that; qUel!ltion. Tbe COmplMna.nt,May, was When the suit WQ,S brought, and now is, a citizen of Iowa, and the defendant St. John was and is a citizeno[Con· necticut, and the amount of the judgment soughJ itO set aside,is over 82,000. To the originlil bill filed in the state court there were made defendants the mayor, recorder, and treasurer of the city of Cedar Rapids,