PATTEN v. CILLEY. (Circuit Oourt, D. New Hampshire. July 6, 1894.) No. 400.
ApPEALABLE ORDERS-DISMISSAL OF PETITION FOR REMOVAL.
The dismissal of a petition for removal on the ground of local prejudice stands on the same ground as an order of reIrulnd, and is not a final judgment from which a writ of error will lie. In re Pennsylvania Co., 11 Sup. Ct. 141, 137 U. S. 451; and In re Coo, 5 U. S. App. 6,1 C. O. A. 326, and 49 Fed. 481, followed.
This was an application for a writ of error to the supreme court to review an order dismissing, for want of jurisdiction over the subject-matter, a petition for removal of the cause from the state court, on the ground of local prejudice. 58 Fed. 977. Harvey D. Hadlock and W. L. Foster, for petitioner. Bingham & Mitchell and Streeter, Walker & Chase, for respondent. Before COLT, Circuit Judge, and ALDRICH, District Judge. ALDRICH, District Judge. At the August teI'Dl, 1892, this court remanded the probate proceeding in which Horatio G. Cilley was appellant in the state probate court, and which he removed to this court within the time in which a party may remove a proper cause as a matter of right. Such order was upon the ground that the court had no jurisdiction over the subject-matter of the contro· versy. Subsequently, the same party petitioned for the removal of the same controversy, on the ground of local prejudice; and such petition was dismissed December 11, 1893, for the same rea· sons, and the case is reported in Re Cilley, 58 Fed. 977. This is an application or petition for writ of error from such order of dismiss· al, to the supreme court of the United States. In re Pennsyl. vania Co., 137 U. S. 451·454, 11 Sup. Ct. 141; Patten v. Cilley (1892) 1 C. C. A. 522,50 Fed. 337; and In re Coe, 5 U. S. App. 6, 1 C. C. A. 326, and 49 Fed. 481,-would seem to settle this question against the petitioner. The case first cited was a petition for removal on the ground of local prejudice; and Mr. Justice Bradley, in denying the petition for mandamus, seems to have made no distinction between the dismissal of a petition for removal and a remanding order. In re Coedoes not suggest any distinction, and, indeed, the opinion in that case is based upon the idea that the order is not a final decision of the cause, but rather a refusal to hear and decide, from which there is no appeal. The dismissal of a petition for removal is as much a refusal to hear and decide a.s a remanding order, and we do not see our way clear to make the distinction which the petitioner claims. See, also, McLish v. Hoff, 141 U. So 661, 12 Sup. Ct. 118; Railroad Co. v. Roberts, 141 U. S. 690, 12 Sup. Ct. 123; Joy v. Adelbert College, 146 U. S. 355, 13 Sup. Ct. 186; Wauton Vo De Wolf, 142 U. S. 138, 12 Sup.Ct. 173; American v.62F.no.7-32
Const. 00. v. Jacksonville, T. & K. W. By. Co., 148 U. S. 372, 382, 13 Sup. Ot. 758. "/,f'T:.' The writ is denied,. and the petition dismissed.
COLT, Circuit Judge, concurs.
CILLEY v. , PATTEN et al. (Circuit OOurt, D. New Hampshire. July 6,. 1894:) No. 255.
"A. feEleral courtllns' uojurisdlctioll to disestablish 'It ,will admitted to in the state,eeourt and one oot where the state COU11;s of no sucb.p<>:w,ers.,
2. SAME-DIVERSE CITIZENSHIP-AcTUAL INTEHESTS OF PARTIES.
In deterroiningquel!ttQUS of jurisdiction :on the ground of diverse citithe parties, are,: to be placeq. on the side the, GOntroversy to which they belong according to their actual ,
a G. Cilley agl(linst WilIif,l!U A. Patten, in which. John J. Cilley and J. Henry Dearborn were also joined as will to in state establIsh, .a:n;,ea,i'her Will. :For reports"ofprevlOus decisiob:$: lIt the same IHigation, see 4t>'Fed 892; 1 O. G., A. 522, 50 Fed. 337';' 977; alsoi,62 Fed. 497. complainant., , ,,' , Walker & & Mitchell, for rel!lPQndent 'COLT, Circuit J1idge, and ALDRICH, District Judge: This is a hill inequity, and involves the valilility of,the will. Q£1Ma.tilda P,'Jenness, dated Mal'ch 26, 1884, in A. Patten is sole legatee, or, to speak more specificially, the disestablishment (If the will of 1884, admitted the of a ,will dated in 1878"n9t probated state court, and in ,which Horatio G. "eUley, JpAnJ. Cilley, sole legatees. It , ,,' also prays intbecil'cuit c()urtof the United States annulling the ,of the propa,tecourts in New Hampshire,an accounting ,by the unde,r the probated ,will of 1884 to the sole legaunprobateQ, wi)l of 1878, and, as incident theretol the setting aside of certaiJ:\ from the testatrix to Patten, th,e qates oft];le earlier will and the later ,.one. The conis that involved in the proceeding ,before,tlJJfiI court in 11, 1893) 58 Fed. 971:,111e queEitiQn.then considered proceeded npon tbe idea that the 'federal courts, had no jurisdiction over the -probate of wills in a state where there was no statute conferring juris. diction upon its Qr common-law CO'1lrts.' We, think the . reasoning there tp.e presentcause.df ,the! will of 1884
A.W:fP:CII, District Judge.