CARSON,''& RAND LUMBER CO. V. HOLTZCLAW.
vol ve a separable controversy, and tbat they were not removable on that ground. ' It is suggested by counsel for the rail way company that jurisdiction of the suits may be entertained under and by virtue of the provisions of section 737, Rev. St. U. S., which provides that"When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of, nor foulld within, the district in which the suit is brought, and do not VOlll ntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudieation of tbe suit between the parties who are properly hefore it; but the judgment or decree renderedtherelnshall not conclude or prejudice other parties not regularly served with process, nor voluntarily appearing to answer; and non-joinder 'of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute matter of auatement, or objection to the suit." The answer to this suggestion is that section 7 37 does not relate to the removal of suits from a state to a federal court. It is the old act of February 28,1839, (volume 5, U. S. St. at Large, 321,) and was to enable the federal courts to proceed with the hearing of suits properly brought .against several defendants who were jointly liable, when, by virtue of the fact that some did not reside in the state, process could not be served on. all the joint obligors. Conk. Pro (3d Ed.) 152-154. The section in question has no application to a case until it is properly lodged in the federal court, either by being brought therein originally, or by having been removed from a state court under some provision of law authorizing the removal. The present suits were not lodged in this court under the provision of any aet authorizing a transfer, and they are accordingly remanded to the circuit court of Macon county, Mo.
(Oircuit Oourt, E. D. Mi88ouri, N. D.
In an action by a foreign corporation for the price of lumber sold. defendant counter;claimed for services rendered. and for damages for breach of contract. In support of a petition for removal to the federal court plaintiff filed an affidavit signed by several citizens of the county in which defendant resided. stating .in general terms that from prejudice and local influence the plaintiff could not obtain a fair trial in that county,or in the judicial district. The facts stated in the atlidavit were that defendant had a large and influential business connection In the county and district, and that the counties had had more or less litigation in their corporate capacity. which had excited a prejudice against non-resident corporations. This affidavit was controverted 'by one signed by numerous citizens of the vicinity. Held, that the petition would be denied. '
. On Petition for Removal. For opinion on application to strike petition for removal from the files, see ante, 578. · Sears & Guthrie and Janies C. Davis, for petitioner.
B. R. Dysart, Berry & Thompson, and Anderson & Schofield, for defendant.
THAYER, J. In the caseOf Short v. Rauroad 00., 33 Fed. Judge BREWER held that the act of 1867 concerning the removal of causes from a state to a federal court on the ground of "prejudice and local influence" was superseded and repealed by implication by the provisions on the same subject contained in the second section of the act of March 3, 1887. He further held that when an application is made for removal under the latter act on th\3 ground of "prejudice or local influence" it should be addressed to the feder.al court in the first instance, and inasmuch as the law provides that "it shall be made to appear" to that court that prejudice Or local influence exists, it is the duty of that court to hear evidence pro and can, if necessary, (either oral testimony or affi· . davits,) aBd to decide thereon as' to the existence of such prejudice or influence, before entertaining jurisdiction of the case on its merits. To the same effect is the decision ofJustice HARI.AN in Malone v. Railroad Co., 35 Fed. Rep. 625, and of Judges WAu,AcE·and LACO:IfBE in Amy v. Manning, 38 Fed. Rep. 868, 536, and of Judge BUNN in Southworth v. Reid, 36 Fed. Rep. 451. At variance with these decisions are the decisions in Whelan v. Railroad Co., 35 Fed. Rep. 849; Fisk v.: HeMric, 32 Fed. Rep. 425; and Hnskins v. Railway Co., 37 Fed. Rep. 504:. Judges J ACKSO;';, DEADY, and KEY hold that an affidavit by a non-resident suitor, alleging in the words of the statute" that from prejudice or local influence he will not be able to obtain· justice inthe state court," is sufficient to authorize a removal to the federal court,and that such allegation cannot be traversed l::iy the person or persons against whom a removal is sought. In this district the decision of Judge BREWER must be accepted as the correct interpretation of the act of March 3, 1887, until the supreme court of the United States decides differently. In accordance with these views, on the 4th ofJune last, I gave the resident suitor, (Mr. Holtzclaw) leave to file affidavits in opposition to those filed by the non-resident in support of its petition for removal. Vide ante, 578. ·The affidavits on both sides with the resplt that the court is not satisfied that a right of removal exists. The suit is one in which the Carson & Rand Lumber Company sue for the value of lumber sold and delivered to-Holtzclaw. The.defendant has interposed a counter-claim for services rendered, arid fordamnges sustained by of breach of contract. The suit is not one in which the public can he presumed to take any special interest, nor is it one calculated to·exciteal1ylocal prejudice, or affe.ctany local interest. An affidavit signed by' several citizens of Macon county,. Mo., where the suit ispe·nding, bas been filed, stating in general terms that from prejudice and local influenoe the lumber com'pally willilOt be .a,ble to obtain trial in Maco l1 county, or in any county in that judicial circuit to wnich the case can be removed. This can be regarded in no other light than an expression of the opinion of the several affiants. The facts stated in the affidavit on whioh such opinion is based are (1) that Richard Holtzclaw has been a resident of Macon county for some years, and has It large and influential business
-acquaintance in that and adjoining counties; (2) that Macon county find other adjoining counties have had more orlesslitigation in their cor3 prejudice against porate capacities, andthllt sucll litigation has non-resident foreign corporations. On the other hand, an affidavit signed by numerous citizens of the county is filed, which alleges in substance thatn.o prejudice exists against the lumber company, and that Holtzclaw has n'o such influence in Macon county and the adjoining counties as would; prevtmt a fair trial of the case in qUfstion. It is sufficient to say that the petitioner's proofs are utterly illsuffieient to estabHsh that such a prejudice exists among the inhabitanttl of several populous counties, or t!;Jat Holtzclaw has such a dominatinginfiuenceover suchinhabitants, that petitioner cannot obtain a fair trial of the suit in question. The integrity and of the people of an entire judicial district, consisting of several counties, cannot be impeached by such general averments as these. It is by no means probable that the condition of public sentiment is such that in a business controversy between an ordinary foreign business eorporation and. a citizen of Macon county, the judicial tribunals of that and the adjoining counties would be unable to administer justice fairly. If that is the condition of affairs in the locality in question, the petitioner ought to be able to show with more clearness the cause of the prejudice that exists against it and that prevents it from obtaining justice, as well as the secret of the undue influence which the defendant exercises' over the people of the community. The petition for removal is dismissed at ptlitioner's cost, and an order of removal denied.
et al. v. HULL et at
, Oircuit Oou,rt,
E.n. Missouri, E. D. September 26.1889.)
In a proceeding in which a deed which conveyed a life-estate to grantee with remainder to her heirs. but which intended to convey the fee-simple to the grantee. was corrected, the heirs were not parties. Subsequently the land was conveyed in fee by the I!rantee to complainants' ancestor. who made several attempts to obtain releases from the heirs, the grantee having died, all of which was well known to his agent, one of the defendants, who managed the property, and after said ancestor's death continued. to occnpy the same confidential relations to complainants; said defendant entered into a conspiracy with two others, and procured deeds from the heirs for their respective inter· ests to one of said conspirators. and by collusion procured the dispossession of complainants. The bill, after alleging these facts, prayed the court to ad· judge that the decree reforming the deed concluded tile heirs, and oper'ated with the subsequent conveyance to complainants' ancestor to vest the full legal title in them; or thltt it might decree, a reformllotion of that dee(t, making it operative as a transfer of the fee; or that the court might decree that the' transactions between said defendant and his' 'co'conspirators were in breach of the fiduciary relations existing between him and complainants and the title thereby acquired was acquired in trust for complainants. Held, that the bill was not multifarious.
In such an action, the grantor and grantee's trustee in the corrected deed :arenot.indispensable parties. .