OpenJurist

694

FEDERAL REPORTER,

vol. 42.

herent; and constitutIonal power of nationahovereignty. Fifteen years ago cases'like this caused much political, legislative, and forensic discussion,and Bomeconflict of jurisdiction between state and federal courts, Most of the disturbing and perplexi:ng questionsoflaw involved in such cases have now been authoritatively settled by carefully considered decisions in state and national courts. Tennessee v. Davis, BUpra; South Carolina v. Davis, 107,U. S. 597,2Sup. Ct. Rep. 636; State v. Hoskins, 77N. C. 580; In reNeagle, 39 Fed. Rep. 833.' In the Neagle Case the authorities are ably and fully reviewed, and among others the following principle is·announced: ' '!It is the exclusive province of the United States courts· to ultimately and conclusively determine Rny question'of right,civil or criminal, arising under the laws of the United Statt's. It is therefore the prerogative of the national courts.to construe the national statutl'8, and determine upon habeas corpus whether'8 homicide, for which the petJtioner is charged witb murder by ,the state authorities, Was the result of an 'act done in of a law of the United States,' and, when tlJatquestion has been detetmined in the affirmative, the prisoner will be' discharged. and the state has nothing more to do in the matter." . This case' has just been affirmed by' the United States supreme court. 10 Sup. Ct. Rep. 658. , Being well satisfied from a decided preponderance of the evidence in this case that the petitioners were acting in the line of official duty when the homicide Qceurredj and that they' ate rtOt guilty of murder, as charged in the state process under, which they' were arrested, it is ordered that they be discharged.' '\ '

CHAMBERS ,,::McDoUGAL et· at

(CircuU Oourt, D. Kansas.' May 22,1890.)
L RBJlOVALOP CA17I!lEIl-DJvnSB CITJZB1!1SJJjp..-PRAOTICB.

A petition for the removal of a cause. from the Iltate to tlte federal oourt, on the ground of diverse citizenship stated that' plainti1f was a resident 'of Kansas, and that, defend\lntel were, are, noo-residents, and citizens of states other than will more, appear by the aftldavit of the plainti1f C. for an order of pubhoation 'filed herein,' Snch atfldavit reoited that defendants (giving their names) were non-resic1entB ,and, the, complaint in the cause referred to oertain of defendants as residents of \7ermoD,t and M:issouri. Held, that the diverse ,citizenship of tbeparties suftlclently appeared from the wholereoord, and a motion to rebecause the for removal failed to show the citizenship of defendants shOuld be denied.
, ,

a.SAlI&....:JURJSDicTIONAL AMOtmT.

Where the petition itor' removal, in' inch .' case, alleges' that the' action Is on' a fraudulently and to cancel bondlt issued and seof $45,000, aod states that the BIJ;l0unt 10 controversy exoured by it, to interest and. ooats, cAnd theeo'ntroversy is suftlciently Ii!tated io the tQ.remanq ,to the staWoourton the ground that 'tiIle petition 'for rem6val,and t.he recordc1o not show that the amount in controversy ,axeeea. will be dBiIed., ",: .' ',', , The rule that the contl:01 him, and

..

'JJl'

a,

will reserve the l:ight and power to M. oharge,cannot prevent a receiver ap-

,

"'CHAMBERS V.y'DOUGAL.

695

courts suits altecting the re-o

pointed by a state court'from,bj:1nging ill ceivership property.
"

.

BAME-IltREGULARITIES IN REMOVAL BOND.,

Where a cause is once removed from a 8tate to a federal court, and there are no jUrisdictiollal objections ,to its remaining there,the facts t4a,t a defendant, bank has lligned the removal bond llurety,. and the other had no authority to llign, are not, where the bond 18 otherWise ample, su1llclent grounds for remanding tile .cause.

'

In Equity. On motion to remand. A. McMath,' for plaintiff. Robil18Dn, for defendants. FOSTER, J. The defendants removed this cause to this court from the stale court on the ground of diverse citizenship. The plaintiff now files his motion:to remand tbecause,to the state court for several reasons: First, the petition for removal do.esnot· state the residence and citizenship of the several defendants.' The averPlent as to citizenship ip. t};1e petition for removal is 8aJollo"is:, . , "That llctil)n ill volveil between citizens that the plaintiff, R. L. receiver, was ,at the time of the commencement of tbis action,and at all times since bas been, and now is, aresident and of tbe state of Kansas, and that said' defendants, and each of ,tbem, were at tbedate of the commencement of this suit, ever siIrcebave been, and lItillare,non,residentspf tbestatllof Kansas,and citi7;ens of otberthllnKansas, as will appear by tbe affidavit of ,the plailltUl'. Cbambers,for an order 9f publication ftlea·herein on tpe 8th day of October,
,

.,' .

.'.

\

The averment as to citizenship .in the affidavit for publication is.as follows: "And deponent further. saystbat the defendants Htltty C. McDougal, E. A.Hall, S. Warden, Harry C. McDougal as trustee, George F. W;llk:er, Annie Lee, llndeac1,l of them, are non-residents of tbe state of KansaS, and .tbatsaiddefendants 'tbe Windsor National Bank of Wihdsor, Vt., tbe l5l\vings Bank of Bradford, Vt., tbe National Bank 'Of Kansas City, Mo., and each of them, are foreign corporations; not located. or doing/business within this state, and tbat plaintiff, with due diligence, is unable to make service of summons in this action on either or any of the detendants within. the state of Kansas.." In the plaintiff's complaint the defendant corporations are referred to as follows:' . , "The National;Bank of Windsor, Vt" associlltion'duly Qrganized, under the natioD,al banking law'sof tbe United States, and the .Bradford Savings Bank, of Bradford, Vt., a l'.orporation duly organized under the laws of the state of Vermont, and the National Exchange Bank, of Kan88S City, Mb.,an association dUly ,organized under the natiOnal bankinglaw8 of tbe United Statli!S." , If it appears:from the, !Whole record that the citizenship of the parties is such as to give this court judsdiction, the case will not be remanded. ,'.Bondurantv. Wat8on, lOB ,D. 8.,285; Water Coc. v.·Keyes, 96U.S.199. 1'heaffidavit for publication; as well as the plaintiff's complaint, area necessary part of the record; and from the petition, for

696

FEDERAL REPORTER,

vol. 42.

redOra, it sufficiently appears that all the defendants are citizens of other states than Kansas. It is further objected that it does not appear from the petition for re. . ttioV'al or the record that the amount in controversy exceeds $2,000. allegation in the petition for removal, on this point, is as follows: "That this action was founded upon an alleged fraudulent execution of a certain mortgage or deed of trust executed by the said First National Bank Building Association of Colby, Kan., and for the cancellation of forty-five thousand dollars of bonds issued by said building l\sSociati\lP, the payment of which is secured by said deed of tl'Ust, and alleging in said petition, among other things, tliat these defendants are the holders of said bonds; that plaintiff. in said petition, prays the cancellation of said bonds; and that the amount in controversy exceeds twenty-five hundred dollars, exclusive of interest and costs... By reference to the plaintiff's complaint, it be seen that the controversy'is fairly but briefly stated, without going into technicali. ties, appears to be Buffident. DefEll?-d.ants further allege that, inasmuch as this' is a suit by a re.could not have been originally brought in this court. That is. "mislJpprehension oft1l,e law. It does not matter.whether the plaintiff is a an lldministrator, truswe, or holdi11g any other fiduciary capaoity·. The federal courts are notclosed.againsthim on that account. His thecourtiappointinga receiver will reserve the right and such receiver, and the property under his charge. So does the probate court control its adrlti'nistrator, and the estate under his. controt . And in this case the controversy between plaintiff and defendants can .be tried in' this court without in any manner encroaching on this rule. fourth and last 'Objection to the right of removal is the most seriOUSj and this case discloses a mode of practice which, under the comityoe courts, should. be. condemned. Th{J d.efendimts filed their petition andbondJor removal in the state court.. They did Dot appear and present it tQ the court, and ask to removing the case, but allowed the adverse counsel to call it' up; and the following order was entered in the state court: "Each and all the above-named defendants having ap'peared in this action by Etijilh. Robinson, Esqnire, their attorney,andfiJed their petition for the. removal of this case to the circuit court of the United States for the district. of ;l{a,p,llf\s,: and said plaintiff appearing by E. .A. McMath, his attorney. in-0PPQsitiQn to such application, thecowt, upon due consideration, doth deny said petition, and this cauSe is continued the next term ot and this conft." . . It is' true the state court cannot deprive a party entitled to removethe case of his right of removat On the other hand, the state court. cannot be deprived of its jurisdiction until a proper petition and bond for removal have been presented.. In this case, it does not appear on what grounds the state ,court refusedtovrder the case removed. Thepetitidnseemeto be in proper form, but the form of the ilureties to tha bond ,may be ·questioned. The bond reads as follows: ,.

The

will

.;'

COOPER'". RICHMOND & D. R. CO.

697

Kansas City, Missouri, and the First National Bank 'of 'Frankfort, Kansas, as sureties, are held and firmly bound unto R. L. Chambers as receiver, the above-named plaintiff, in the Bum of one-thousand dollars," etc. It will be, seen that the National Exchange Bank Qf Kansas City, Mo., and the First National Bank of Frankfort, Kan., are named as sureties. The first-named bank is a party to the suit, and one of the removing parties, and I of course, could sign the bond, but whether as surety instead of principal is not so clear, while the First National Bank of Frankfort had no authority to sign the bond either as principal or surety. The action of its cashier was ultra vireB. The National Exchange Bank has a paid-up capital of $200,000; and waiving the question whether it is liable as principal or surety, the sufficiency of the bond cannot be disputed. This case is one which the defendants are entitled to remove to this court, and the order of the state court refusing the removal was not, apparently, based on any objection to the bond or the surety; and the case need not be remanded to the state court on account of the informality of the surety to the bond. Beede v. Oheene:y, 5 Fed. Rep. 388; Ste'Vens v. Richardson,9 Fed. Rep. 191; Removal OaseB,lOq U. S. 457. This question is fully discussed in the case of D&nnis v. Alachua 00., 3 Woods, 683; and Judge SETTLE, in that case, the following language: "There are many cases to found in the recent numbers of the law publications to the effect that when a case is once removed from a state to a federal court, and there are no jurisdictional objections to its remaining there, it will not be remanded or dismissed for defects connected with the giving of the security or bond. or other il'l'egularities which can be remedied, or which have not worked any prejudice." For the various reasons before stated, I reach the coriclusion that this ease is properly in this court, and the ItLOtion to remand must badenied. '

gal and George F. Walker, as principals, and the National Exchange Bank of

"Know all men by these presents, that the undersigned, Henry C. McDou

COOPER '!1. RICHMOND

& D. R. Co.

(Circuit Oourt, N. D. Georgia., June 21, 1890.)

1.

REMOVAL Oil' CAUSES-LoOAL PREJUDIOE-PROCEDURE.

Since Act Cong.March 3, 1887, which provides for the removal of causes on the ground of local prejudice does not prescribe any mode of procedure, a petition for removal, accompanied by an affidavit by a person authorized to make it, stating of his own knowledge the existence of prejudice and local influence, is sufficient'to justify an order of removal. Following Whelan v. Railroad 00.,35 Fed. Rep. 849. Where such an affidavit is presented, the court will not permit the adverse party to traverse it, and will not hear evidence on the 8ubiec1i. Following Whelan v.

SAME-TRAVERSING AFI!'IDAVIT.

Raiwoad. Co.·. 35 Fe(j,. Rep. 849.

Motion to Remand. HaU &. Hammond. for

FEDERAL REPORTER:;

vol. 42·

.·

PARDE!'J

.,"/ l .

and POpe Ba,rrow, for defendant. and NEWMAN, JJ.. . .
. _ -,

llCmovedto this court from the state court,W:l4er the Act of March 3, 1887, by the defendant corporation, on the ground of" prejudice and local influence." The questions for determination arise over the sufficiency of the affidavit made on behalf of the and on which. the order rot removal was made. In connectiouwHh the petition, setting forth the facts as to the amount involved, the. cidzebshlp of the parties, and the residence of the plaintiff and desubject-matter of the suit, and the prayer for removal, which is by counsel, defendant an affidavit made by S. G. acting superhitendent of the road in Georgia, who states therein thatmatiy years' experience in railroad matters, and,especially with against the defendant, Richm'on4 & Danville Railroad, in this particnlar.in:the of Atlanta', in said Fulton county, state of Georgia. I know ,tbat, Jfrom prejudice and 10ca}'illlluence, defendant will.not be able to obtaib:1Ulitleein court of Fulton county, of the state of Georgia, nOf in aJ;lyother.cQurt to/wlli.cb the petitioner may, under the. laws of said state. have the fight, onaQllount of such prejudice or local influence, to remove said ca'use." . ,,' '. , .. ,,: '.1"" .·... Themotio,n of the plaintiff is in these words: in the tlon to the ,to into tpe t):,uth of the $nd grounds for removal of saId cas'" to ..emund saId case to the superior court of county, on, tl;tA grQpnd thatlt is not true that th,e said defendant is unable to obtahi justiCEl'iiI said state court from prej udice or localinfluence." Two have, l>een argued and submitted.. First, whether or not the.cqqit was in signing the order for removal on the affidavit 'otdeYendarit's acttn'gsuperintenderit, above quoted; 8econd, whether or not the court will now hear evidence as to the existence of prejudice and local influence, or, in other words, ascertain by evidence aliunde as to the existence or non-existence of the grounds for removal. There is decided conflict in the decisions and opinions of the various circuit courts upon both of thesequesti6ns. The following decisions are upon this subject: Pi8k v. Henarie, 32 Fed. Rep. 417, 35 Fed. Rep. 230; Slum v. Railway Co., 33 Fed. Rep. 114; Hilla v. Railroad Co., ld. 81; Whelan v. Railroad Co., 35 Fed. Rep.849; County Court v. Railroad Co., ld. 161; Malpne v · .l,lailroad Co., ld. 625; Southworth v. Reid, 36 Fed. Rep. 451; Huskins v. Railway Co., 37 Fed. Rep; 504; Goldworthy v. Railway Co. ,. .38 Fed. Rep. 769; Denini80n v. Brown, Id.535; Amy v. Manning, ld. 536; Lumber Co. v. Holtzclaw, 39 Fed. Rep. 885; Minnick v. Insurance Co., 40 Fed. Rep. 369. ' . . '. ,'.' ,! After. a cfl.l'efUl of aU the. cases, we are disposed to adopt the conclusion, and the reasoning by which he arrives at that conclusion, of Judge JACKSON, in the case of Whelan v. Railroad Co., supra, and to hold that where the petition for removal is accompanied by an affidavit on behalf of the defendant, by a person authorized to make it, stating
NEWMAN,

J.

COOPER

v.

RICHMOND && D.R. CO.

699

of his own knowledge, as ,in tQis case, the existence of prejudice and local influence, it is suffident to justify the order for removal. In other words, when it is "made to appear" to this court, by affidavit made on the affiant's own knowledge'; that the prejudice and local influence exist, that it is a compliance with the statute. There is nothing whatever in the act of 1887 to show how it shall be" made to appear" to this court that the prejudice and local influence exist; and unless subdivision 3, § 639, of the Revised Statutes, (Act 1867,) remain of force, there is no law prescribing a method of procedure. The language of the court in the Whelan Case, supra, is as follows:
"It is further contended that no proper proceedings have been had or taken by the defendant, even conceding its right of removal, to effect such removal. By the third section of the act of 1887, the steps required to be taken in removalcases generally are indicated; but that section excepts from its operationcases sought to be removed on the ground of local prejudice, in respect to which clause 4 of amended section 2 prescribes no mode or method (If effecting that class of removals. ' What procedure may, theil, be adopted by the party seeking or entitled to remove under this clause? In conferring the right, congress certainly intended that some process for its exercise should be within the reach of the party so entitled. We think the method 01' procedure for effectuating the right so concerred by said clause may be found in the two paragraphs of section 639, Rev. St., which succeed the third subdivision of said section. These two paragraphs, prescribing the method of accomplishing removals, are not in conflict with the act of 1887, and may therefore be con· sidered as still in force, and as furnishing the proper and appropriate remedy to be employed by the party seeking a removal, and in making it ·appear to said circuit court that. from prejudice or local influence' he will not be able to obtain justice in the state courts. It is not indicated in the act of 1887 how or in what manner the fact that the removing party cannot obtain justice in the local courts, on account of such prejUdice or local influence, shall be made ·to appear' to the circuit court. .Judge DEADY, in v. Hena1'ie, 32 Fed. Rep. 417-421, (NOV. 29, 1887,) held that the last clause of section 639, Rev. St., which immediately follows subdivision 3 of said section, might reasona· bly be looked to as furnishing the machinery for making it ·appear' to the circuit court that the petitioning party could not obtain justice in the state court because of prejudice or local influence. If this suggestion of that learned jUdge, in which I concur, is not deemed correct, then, in the absence of all prOVision as to the method or mode of presenting the application for removal. this court would be left free to adopt proper and suitable rules prescribing and regulating the practice in such cases; and such rules would naturally be made to conform to the practice and procedure heretofore in force in like cases. In either view of the subject, we think the mode adopted by the defendant in this case is not open to any serious objection. A formal petition, properly sworn to, was dUly presented to this court, setting forth all the conditIons required by the act to entitle said defendant to remove the suit. This petition was accompanied and supported by the affidavit of the proper officer of the defendant company, stating, not what the affiant bad reason to and did believe in respect to the existence of local prejudice, but in direct terms, and in the. very language of the act, from prejudice and local influence, said said railroad company will not be able toob1ain justice in said courts of common pleas, or in any other state court to which it has, under the laws of the state of Ohio, a right, on account of such prejudice or local influence, to remove said cause,' etc; This made aprimafacfe showing as to what was required ·to be made to appear to the circuit

I

700

FEDERAL REPORTER,

vol. 42.

In the case of Railroad Co., supra, (decided in this court by the distriot judge presiding therein,) and in the case of Fisk v. Henarie, supra, (decided by Judge DEADY in the circuit court of Oregon,) it was held that the old aot, safar as the method of procedure for removal was concerned, remained of force, and that, when an affidavit was made in. accordance with the act of 1867, it was sufficient to justify removal. It seems.' the better practice now, however, even if it be that it is not required by the law, that the existence of the prejudice and local influence should be stated of the affiant's own knowledge. That has been done in this case, and we think the affidavit was sufficient to justify the order for removal. NoW.; the affidavit named being sufficient to authol,'ize the order for remo\!lI.1, the court, permit thec;>ther party to traverse the grounds of the affidavit, and hear evidence as to the existence of prejudice and local influence? We adopt the conclusion of the court in the Whelan Case upon this subject, also. The argttment of JUdge JACKSON upon this subject in the case named (pages 861-8(6) leaves nothing to be added by us. It seems to us conclusive upon this question. We. have had occasioJJ .in this case, and in SQme other similar cases arising here, to examine a copy of the bill presented informally, and discussed in a former case which passed the house, and, after amendments in the senate, was concurred. in by the house, and resulted in the Act of March 3, 1887. the bill as it passed the house, and the various particulars in This whichitvrliS amended, by striking out and inserting language, in the senate. From this it appears that, as the bill went from the house to the senate, ,it read, so fnras pertinent to the questions here, as follows: "When it shall be mad13t() appear to the satisfaction of the court that, from . or local etc. In the senate, the words. "the of the," wel,'e .stricken out, and the words" said circuit," beinserted, spthat it read aait went back from the senate to fore the house and was passed, as the act now reads, "When it shall be made to appear toihe said circuit court," etc. It will be seen from the history of this pal'tof the actthll:t, by the house bill, it was contemplated that it should'be to "to the satisfaction of the court," (probably the state court,) that the prejudice or local influE:Jnce existed, and that the senate chang.ed it so that. it should clearly provide for the application to bernade to the circuit court, and refused to agree to the language which was stIlicken out, above quoted. This undoubtedly indicates an intention not to allow a provision looking to investigation and inquiry as to the existence of prejudice or local influence to become a part of the act. Hthis part of the history of the act of 1887 be a proper matter for consideration, it greatly strengthens the argument in favor of the clause in question as indicated above. The supreme court of the United States in Blake v. Bank, 23 Wall. ·307, adopted this method of interpreting ail act of 1870 taxing incomes frotJJ dividends, etc. The announced is that' "A apparentlY· contradictory ,enactmeQt. (such as the of congress. one above mentioned) interpreted by a refereuc·e to the

WITTERS fl. SOWLES.

701

where it appeared that the peculiar phraseology was the result of an amendment introduced without due reference to language in the original bill." If the history of this act, in the respects named, be the proper subject for consideration, it seems to us conclusive upon the questions now presented, and clearly negatives the idea that any investigation or inquiry such as we are requested to make here as to the existence of grounds of removal was contemplated by congress. Irrespective of this, however, it appears that, when congress came to deal with the cases which had been removed to this court by plaintiff before the passage of the act, it provided that"The circuit court shall, on application of either party, ex.amine into the truth of sald affidavit, and the grounds thereof; and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such state court, it shall cause the same to be remanded thereto." 24 St. U. 8.553. It appears from this that when an examination into the truth of the affidavit, and the ground thereof, was contemplated, it was so stated in express terms; and the statement of it there, we think, gives emphaRis to its omission in the preceding part of section 2, in making provision for removal by the defendant. So that, giving no weight whatever to the history of the act, and construing it by what appears upon its face, the clear statement of the duty of the court in one case, and its entire omission iIi. the other, is very significant, and leads to the conclusion, that in the latter case, no such duty was intended to be imposed. Motion denied. PABDEIl:, J., concurs.

WI'I'TERS 'V. SOWLES

(Oircwf,t Oourt, D. Vermont.

QUIETING TITLE-REMEDY AT LAW.

et al.

June 28, 1890.)

A purchaser of land at execution sale cannot bring suit to quiet title against anothel' purchaser of the same land under a subsequent execution, in order to determine which has the better title, since the respective rights of the parties may be determined at law.

In Equity. On demurrer to bill. O. W. Witters, pro se. Edward A. Sowles, for defendant. Before LACOMBE and WHEELER, JJ.
PER CURIAM.. The compiainant heretofore brought an action on the law side of this court against the defendant Margaret B. Sowles, and therein attached pertain real estate up0n mesne process, November 2, 4, and 5, 1887. Verdict and judgment followed, May}, and ex-