DERGER V. COlU'RS OF DOUGLAS OOUNTY.
defendant in the subject of 'controversy on which the suit is bronght, the non-resident citizen has the right togo into the state court and ask for the removal of the cause into the fed· eral court. I do not think that principle can be maintained, and, therefore, I shall refuse to take jurisdiction of this case.
COUNTY COM'RS OJ' DOUGLAB COUN'rY.
(Circuit Court, D. Nebrask(J.
cause of action to the present plaintiff, who was substituted upon the record as plaintiff, and, being a citizen of Colorado, thereafter moved for and obtained an order of removal on the ground of the citizenship of the parties. It is conceded that, unless the case presents a federal question,-of which I will speak presently,-the plaintiff could not have brought his suit originally in this court; but it is insisted that, inasmuch as the second section of the act above named, which provides for the removal of causes from the state to the federal courts, does not contain the prohihition against suits by assignees, a case of this character may be brought here by r\!lmovaI. The somewhat analogous sections of the judiciary act of 1789 (sections 11 and 12) were considered by the supreme court in Bushnell v. Kennedy, 9 Wall. 387. In that case the 20urt said: "The restriction in the eleventh section is not found in the twelfth; nor does the reason for the restriction exist. In the eleventh section its office was to prevent frauds upon the jurisdictipn, and vexation of defendants, by assignments made for the purpose of having suits brought in the name of assignees, but in reality for the benefit of assignors. In the twelfth it would have no office, for the removal of suits could not operate as a fraud on jurisdiction, and was a privilege of defendants, not a hardship upon them." It is manifest that this reasoning has no application to the act of March 3, 1875, which gives the right of removal to either party. Under the judiciary act, inasmuch as the privilege of removal belonged only to the defendant, it was, as the supreme court well said, impossible for plaintiffs to perpetrate frauds upon the jurisdiction by assigning claims to non-residents for the purpose of having suit brought in the state court and removed thence to the federal courts. A plaintiff could not remove a case under that act. But, under the act of 1875, since either party may remove, it is evident that great frauds upon our jurisdiction may be perpetrated with impunity, if the assignee of any claim founded on contract may institute suit in a state court, and at once remove the cause to this court.
BERGER V. COM'RS OIl' DOUGLAS COUNTY.
AU the evils (and they are very serious) which congress iniended to prevent by the inhibition of suits by assignees in the . cases specified, are made not only possible, but easy, under the removal act, if it is to receive the literal construction contended for by plaintiff's counsel. It is impossible to imagine a case in which suit in this court, by an assignee, is prohibited by the first section of the act of March 3, 1875, and in which the same suit may not be indirectly brought here under the second section of the same act, if the two sections are not eonstrued together, or if it be held that a non-resident assignee may, in aU cases of suits founded on contract, remove the cause on the ground of his citizenship. By this construction of the act of 1875 we would point out the mode whereby one citizen of Nebraska, holding a claim against another citizen of that state for more than $500, may assign his claim to a citizen of a neighboring state, who can bring his suit thereon into this court provided only comes through a state court. When we consider that the federal courts are few in number and widely separated from each other; that many citizens . reside at places far distant from them j their dockets are overcrowded with cases, and that litigation in them is tedious and sometimes ruinously expensive, we perceive at once the wisdom of those provisions of the statute which have stood from 1789 until the present, which were intended to confine our jurisdiction, in cases where it depends upon the citizen,ship of the parties, to bona fide controversies between citizens of different states. And in order to secure this end it is necessary to prohibit the assignment of causes of action to non-residents, for the purpose of bringing suit either directly or indirectly in the federal courts. I am, therefore, of the opinion that the first and second sections of the act of March 8, 1875, should be construed together as in pari mate1"ia, and, being so construed, the right of removal should not be allowed in a case where the plaintiff is an assignee, unless his assignor might have sued in this court. It is insisted, in the second place, that the case involves a question alising under the laws of the United States. It is
so stated in the petition for removal, but we are not bound by that statement. We are at liberty to look into the record and determine from that what the controversy is, and whether it involves a federal question. The plaintiff here sues to recover taxes erroneously levied and collected by the authorities of Douglas county. The statute of the state gives the right of action. No question under any act of congress can arise. The fact that there is a decree of this court establishing the invalidity of the taxes in question does not change the character of the suit. That decree is simply an item of evidence in the case, and its conclusiveness, its construction, or its effect does not require the construction of any law of the United States. We do not decide upon the question whether this case was "brought" in the district court of Douglas county within the meaning of the first section of the act of 1875. It was instituted as a claim against the county, presented to and prosecuted to a. decision before the board of county commissioners of that county, from whose decision rejecting the claim an appeal was prosecuted to the district court. These facts present a. question of some doubt as to whether the suit was "brought"-that is, instituted, commenced-in the district' court; and if it was not, it was not removable. But the conclusions reached upon the other points in the case render a. decision of this question unnecessary. The motion to remand is sustained.
KREAGER V. JUDD.
(Circuit Oourt,8. D. Ohio, E. D. December 13, 1880.)
1. <';OSTS-WIlEN RECOVERABLE-CAUBE REMOVED FROM STATE TO CIDT COURT-SECTION 968, U. B. REv. ST.-In an action at laworig-
inally brought in a state court, and removed to the circuit court by the defendant, the amount ultimately recovered by the plaintift was, exclusive of costs, less than $500, ($312.46.) Buch a recovery would have entitled him to costs in the state court. Held, that the case is not within section 968, U. 8. Rev. 8t., and that the plaintift is enti·. tIed to costs: although, if the action had been commenced originally. in the circuit court, no costs could have been recovered. Field v. Schell, 4 BIatchf. 435. ElliB v. JOIrf}i,8, 3 Mason, 457.
SAME-EFFECT 011' CoUNTER
CLArn.-As to the effect upon the question of costs of the reduction of the recovery to below $500, by the allowance of a counter claim in an action originally brought in the circuit court, qU(JJre.
Motion to apportion costs. A. W. Train and F. Southward, for plaintiff. Bargar tt Vorheis, for defendant. SWING, D. J. In this case a verdict was rendered by the jury for the plaintiff for $312.!6. Counsel for the defendant now file a motion asking that each party be required to pay his own costs. Section 968 of the Revised Statutes provides: .. When, in a circuit court, a plaintiff in an action at law originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of $500, exclusive of costs, in a case which cannot be brought there unless the amount in dispute, exclusive of costs, exceeds said sum or value; · · he shall not be allowed, but, the discretion of the court, may be adjudged to pay, costs." If this case had been originally brought in this court, there would be no doubt that the plaintiff would not be entitled to costs in the case. But the suit was not originally brought in this cOl1rt; it was brought in the state court, and removed
'lfHepartcd by Messrs. Florien Giauque and J. C. Harper, of the Vineinnati bar.