federal court must find the existence .of such prejudice and local influenceas'a question of fact, before the case can be removed, and make the order in the United States .circuit court for the removal of the case from the state court. Hence all that appears in the petition for removal upon the subject of prejudice and local influence is m.ere surplusage in that petition. This court alone can pass upon that question, and order the cause removed after the fact of the existence of prejudice and local influence has been determined. The case is therefore remanded to the circuit court of Will county, and the same order will be made in the case of Young against the same defendants, and Howk against the same defendants, which were removed at the same time, and present precisely same questions which have been considered in this case.
(Oireuit Court, 8. D. N&w York. May 24, 1889.)
REMOVAL OF CAUSEs-PREJUDICE OR LOCAL INFLUENCE-AFFIDAVIT.
act March 8, 1887, providing that on application for removal on the ground of or local influence, the existence of such prejudice or local influence must "be made to appear to said circuit court," the affidavit for removal must set forth facts and circumstances sufficient to satisfy the court of the of the prejudice aod local influence; and an affidavit stating mere)y'affian,t'sbelief or opinion that prejudice or local influence exists is not sufficient.
9,8AME':""REMAND TO STATE COURT.
When a petition for removal lias been granted on such insufficient affidavit, on motiori"to remand to the state court the circuit court will reconsider the sufficiency of the affidavit, and remand the case if·not satisfied of lIle ence of prejudice or local influence.
On Motion to Remand. Theodore F. ·H.Meye:r, for plaintiff. William J. Weldon, for defendant. WALLACE, J.This is a motion by the plaintiff to remand this action to the supreme court of the state of New York, whence it was removed upon a petition and affidavit presented to this court by defendant, 'stating tbatfrom prejudice or local influence he would not be able to obtain justice in tbestate court, and setting forth the facts and circumstances relied upon to make this appear. The action is brought upon a judgment recovered by the plaintiff against the defendant in the superior court of the commonwealth of Massachusetts. , The only issue. triable under the pleadin/-';s is whether that court had jUJisdiction to render the judgment; Hampton v. McConnel, 3 Wheat. 234; Christma.av; RU88eU, 5 Wall. 290. It is doubtful whether the facts Bet forth intbe affidavits accompanying the petition of the defendants make out liprirnafacie case; but, after hearing the affidavits submitted
for the plaintiff on the present motion, I am impressed that one object in removing the cause was to delay the trial. However this may be, and, assuming that the defendant is really apprehensive that he cannot obtain justice in the state court, I am satisfied that there are no just grounds for the removal. It is insisted for the defendant that the court is concluded by the averment in his affidavit "that from prejudice or local influence he will not be able to obtain justice in such state court," and, if this is not so, that, the sufliciency of the affidavit having been passed upon by the circuit court when the petition was allowed, that action is final, and cannot be reconsidered upon a motion by the plaintiff to remand the suit. The act of March 3,1887; has materially changed the provisions of section 639 of the Revised Statutes; 80 that the condition of removal is uo longer the filing an aflidavit stating that the removing party "has reason to believe and does believe" that from p,rejudice or local influence he will not be able to obtain justice in the state court, but the existence of such prejudice or local influence must now" be made to appear to said circuit court." Under section 639, either a plaintiff or defendant who was willing to make an affidavit of his personal belief upon a matter of opinion could remove the cause; consequently it was quite immaterial whether his belief was well founded or not, and therefore he was not required to set forth the grounds of his bellef, or the facts or reasons for it, and the adverse party could not controvert the truth of the statement. This was a very different condition from the one in the act of 1887, which allows a removal to a defendant only when it is made to appear to the court that the requisite state of facts exists. The language of the present act in substance requires satisfactory proof to be made of the existence of hostile prejudice or influence. Opinions of parties or witnesses are not satisfactory, or even competent, within the evidence, when addressed to facts which are not province of experts. Consequently an affidavit containing mere opinion, even though in the form of a positive statement, is not sufficient; bot the facts and circumstances which justify a judicial conclusion that the requisite case exists must be set forth. The present act substitutes the judgment of the court for the judgment of. the removing party, and makes that a traversable issue which before was left wholly to the conscience of the affiant. This is not an issue to be tried on a plea to the jurisdiction. It is to be determined by the court, and, primarily, when the petition and affidavit for removal are presented. It may be reconsidered upon a motion to remand; and, if such a motion is made, and the court is satisfied by further argument, or by controverting affidavits, that the petition ought not to have been allowed, it has the same power to vacate the allowance that it has to vacate any interlocutory order made ex parte, which has been improvidently or improperly granted. The decisions in the Fifth, Sixth, and Ninth circuits, to the effect that the defendant is not required to state the facts and circumstances that make the existence of prej udice or local influence appear, and sufficiently com plies with the terms of the act by stating his own conclusion in the words ofthe statute, have not been overlooked. These decisions, however, are opposed to others
made in the ,Seventh and Eigbth circuits, and to my own decision in March, 1888, in theaase of Dennison v. Brown, ante, 535, where all the questiohs now: involved were bonsidered, and· were ruled against the cantention of the: defendant. In the present case an application was made to Judge LAcOMBE for an allowance of the petition for removal, and he decided that a.n affidavit of the defendant, merely following the language any facts or circumstances to show the exof the statute, without istence of prejudice or local influence, was insufficient.. The conclusion is reached that the affidavit must set forth the necessary facts and circumstances to· satisfy the court of the existence of such prejudice or 10eal influence iQ;the state court as will preclude the removing party from obtaining justice there; that the removing party cannot conclude his adversary by liie statements in this regard; and that the court has the power to remand the suit, and that it is its duty to do so when satisfied by opposing affidavits that the. case made for the defendant is .not an honest one. The motion to remand is granted.
(Uircuit Oourt. N. D. I01JJa. W; D. May 25, 1889.)
REMOVAL OJ' OAUSEs-:--QUIETING TITLE...,..SEPARABLE OONTROVERSY.
A bill to quiet title requiring each of several defendants to set up any claim or right he may have, or be forever barred from so doing, and seeking an accounting for and profits. does not present a single controversy. and the fact that .cont!,ins, under th.e provisions ofa state statute, an averment that defendants make some claim under a certain administrator's deed does not limit the issues to that single soUrce of title.
A petition for removal, filed by a railroad company, one of the defendants. averring that petitioner was a corporation created under the laws of Wisconsin; that complainants were citizens of MassaChusetts; that the other defendants were citizens of states other than Massachusetts; that petitioner was the sole owner of a part of the land'in dispute, and was In sole possession thereof; and that none of the other defendants had or claimed any interest thereIn,-shows a separable controversy between complainants and the petitioner. and entitles the latter to a removal. Dismissal of the suit as to the railroad company, and striking from the bill all portions asking an accounting with the defendants separately for rents and profits do not entitle complainants to a remand, as the controversy is still within the jurisdiction of the court, the parties being citizens of different states.
BAME-REMAND TO STATE COURT.
BAME-EQUITY-ADEQUATE REMEDY AT LAW.
Nor will the cause be remanded on the ground that there is ample remedy at law and the suit was broup;ht in equity, as the averments being that complainanti\ are owners of an undivided two-thirds and that defendants are in possession of the whole tract, a 8111t in equity was necessary; also, if this were not so, the cause being brought properly in equity under the state statute, the pleadings could be rtlform,ed and the cause transformed into an 1'0tion at law; and again, if this were not allowed, the bill would be dismissed rather than the cause remanded.