32 F. 417 -

mx

fl. HENARIlll.

417

LAnNaKY ". SUPREME LoDGE KNIGHTS OF HO!fOR.

(Oircuit Oourt, S. D. New York. August 20,1887.)
REMOVAL OF CAUSEs-JURISDICTIONAL AMOUNT.

An action for the recovery of $2,000, with interest, was commenced in the state court in December, 1886. On May 8, 1887, it was removed to the circuit conrt on petition of the defendant, and there tried. resulting in a verdict. June 21.1887, in favor of the plaintiff. Defendant moved to remand on the ground that the amount in controversy did not eXC6ed, exclusive of interest ana costs, the sum of $2,000. Held, that under the amendatory removal act of March 8, 1887, limiting the right to removal in actions of this kind to cases where the amount in dispute exceeds $2,000, excIU$ive of interest and costs, tae circuit court had no jurisdiction of the CRuse, dad it should be remanded.

On Motion to Remand. f.Jha8. Steckler, for Lazensky. Morris Goodlw.rt, for Supreme Lodge.
LACOMBE, J. This action was originally brought in the city court of the city of New York, and was for the recovery of $2,000, with interest. Summons was served in December, 1886. On May 3, 1887, the cause was, on petition of defendant, removed into this court, where it was tried June 21, 1887, and judgment rendered for the plaintiff. The defendant now moves to remand said cause for the reason that the amount in controversy does not exceed, exclusive of intereat and coBt8, the sum of $2,000. At the time application for removal of the cause was made, the amendatory act of 1887 (approved March 3d) was in force. Since the passage of that act actions of this kind may not be removed from the state courts except where the amount in dispute exceelk $2,000, exclusive of interest and costs. No jurisdiction to remove and dispose of controversies pending in the state courts (except as provided in the act) is conferred on the 9ircuit courts. Inasmuch as there is in this case no mere irregularity, but a failure to show jurisdiction of the subject-matter, the motion to remand is granted. .

FISK ". HENARIE

and others, Ex'ra,

eta.

(Oircuit Oourt, D. Oregon. October 26, 1887.)

t.

REMOVA.L 0l1' CAUSES-LOCAL PREJUDICE-AFl1'IDAVIT.

The provision in section 2 of the act of 1887, (24 St. 558,) authorizing the court to examine into the truth of an affidavit for removal of a case from a state court, on account of prejudice or local influence, applies only to cases removed before the passage of said act on the application of the plaintiff; and otherwise than this, such affidavit being not a matter of Jurisdiction, but only a condition imposed of the party seeking the removal, It cannot be questioned or contradicted; nor is it necessary that the affiant should statb thtt grounds of his belief.

v.32F.no.7-27

,

418

2.

FEDERAL .REPORTER.

SAME-LoCAL PREJUDICE-WHO ENTITLED TO REMOVAL.

Subsection.3 of section 639 of the .Revised StatuteS, as. a.mended by section 2 of the lIet of 1887, gives the fight to remove a suit "in 'which1here is a controversy between a citizen of the state in which the suit is brought and a citi· zen of another state," to "any" defendant, being such citizen of another state, on account of prejudice or local influence, without reference to the citizenship of other persons who may be parties thereto.
., "

;Thejudicial power of the UnitedStatlls extends to, "controversies" between which include a "case" in which such controversy ,citizens of different exists.without reference ,to the citizt;lnship of the other parties therein; and congress may confer jurisdiction of such controversy, including the case in , which it is involved, on the cir<:uit courts, by removal or otherwise. 4. BAME-Tl'ME .olI' ApPLICATION. ' ; An application for removal of a case from a state court, jf made while the case is pending fO'!' trial,. is made "before the trial·thereof." witllin the intent of the removal acts, although there may have been any number of mistrials, or trials in which the verdict was set aside or the jury disagreed.
(Syllabu8 by tk6 Oourt.) .

Action to Recover Damages. Motion to temand to state court. George H. William./!, for plaintiff. JamesK. 'Kelly and John M.Gea1'in:, for defendants·
. ',

DEADY; J. This action was removed to this court from the state circuit court for: the county of Multnomah, on the petition of the defendants, B. Henarie and Eleanoi' Martin and James M. Donahue, AnllieDonahue, and Mary Ellen von Schroeder, the executors of the last will and testament of Peter Donahue, deceased, filed July 30, 1887, together with their bond, in formltnd effect as required by law, and the affidavit ofsaid Henarie and Eleallor Martin to the effect that they and each of them have reason to andcio believe "that, from prejudice and local influence," the affiants and said executors "will not be able to obtain justice ill 'said state court; or in any other state court to which said detenda,nts; under the laws ofthe state of Oregon, have the right to move the same, on account of such prejuqice and local The , plaintiff now moveato remand the case to thestllte court for substantially the reasons following: (1) The application for ,removal was not made in time, or before the trial in the state court. (2) The affidavit or in'does not state the facts showing the existence of "local fluence." (3) The removal papers were not served on the plaintiff. (4) The petition and accompanying papers do not show a, case for removal. The motion cOliCludes with a denial of the existence of tlie alleged "prejudice and local influence," and asks the court to examine into the truth of the affidavit asserting the same and the grounds thereofj and to that who ,state end the plaintiff offers to read the affidavits of sundry that,they do: not believe in the existence of such prejudice or local,influ, ". '. " , ence. It appears from the record th8<Uhis action was commenced in Wasco county on November 30, 1883,against Daniel V. B. Menarie, Peter Martin, Thoma:$'S. Martiri.,Edward :Martin, and John Donahne, D. Wilcox, to recover a commissi'on of 10 per centum; amounting to 860,000, on the alleged sale of a tract of land belonging ,to said parties,

'FISK 'II., HENAlt:tE.

419

known as the Da:lles militinyroadgraht, containing abOut 600,000 acres, and situate in the counties ()f Wasco, Grant,and Baker, jn Oregon. The first three of the defendants were then residents and citizens of Cali. f()rnia, and the latter three of Oregon., Service of the summons was had on the Oregon defendants, and they appeared and answered. Thereafter, on February 2, 1884, publication of the summons was ordered in the case of the California defendants, who, on August 21, 1884, appeared and answered; The answers of the defendants controvert .the allegations on which the plaintiff bases his demand, and contests his right to recover anything froni them or either of them on any sale of said lands. On September 1, 1884, the plaintiff replied to the answers, and on the tenth of the same month, on the application of the defendants, thp place of trial was changed to Multnomah county, .it appearing that [email protected] of the parties lived in Wasco county, and that the Oregon defendants, as well as the plaintiff, lived in Multnomah county. Afterwards th{' case was tried with a jury in the circuit court for said county, who, OD April 15, 1885, found a verdict, under the direction of the court, fOJ the defendants, on which there was a judgment for costs in their favor: which judgment was, on January 11, 1886, reversed by the supremi court, and a new trial ordered, that resulted on May 21, 1886, in a vel' diet for the ,plaintiff for the sum of$60,000. On May 18th, the death of the defendant Peter Donahue was suggested, and his executors, James M. Donahue, Annie Donahue, and Mary Ellen Schroeder, substituted as defendants. Afterwards, the case was heard on the motion of plaintiff for judgment, and the motions of the d,efendants for a new trial, and a judgment notwithstanding the verdict, and on June the 30th the first motion was denied and the latter allowed, on the ground that the complaint did not state facts sufficient to consti tutea cause of action; and thereupon judgment was entered for costs in favor of the defendants; which judgment was, on October the 20th, reversed by the supreme court, and the case remanded for further proceedings according to law. On December the 18th the circuit court allowed the motion for a new trial, and set aside the verdict, from which order the plaintiff appealed to the supreme court, which appeal was, on April 18, 1887, dismissed, and thereafter the case was again submitted to 8 jury, who, being unable to agree, were, on July the 15th, discharged without finding a verdict. The act of March 2, 1867, (14 St. 558,) gave right of removal of a suit from a state court to a national one, "in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state," on the affidavit of the latter, "whether he be plaintiff or defendant," that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in such state court; provided, he files'a petition for such removal "at any time before the final· hearing or trial of the suit." Section 639 of the Revised Statutes contains a com pilation of the statutes,on the subject of removal!! passed prior thereto. Subsection 3 thereof took the place of the act of 1867. In. its compilation the word" controversy" was dropped, and th"

420

FEDERAL REPORTER.

right of removal limited to a "suit between a citizen of the state in which it isbtonght and a citizen of another state;" and the petition and affidavit were required to be filed at any time "before the trial or final hearing of the suit." By the act of March 3,1875, (18 St. 470,) section 639 of the Revised Statutes was repealed, except subsection 3 thereof. The last two clauses of the section,regulating the manner of removal, were also held to remain in force for the purpose of removals under said subsection, the same not being provided for in the act ofl875. Railway v. Bates, 119 U.S. 467,7 Sup. Ct,' Rep. 285. The act of March 3, 1887, (24 St. 552,) purports to be amendatory of that of 1875, "and for other purposes." Considering the importance of the subject, and the high character of the body that enacted it, to say the least, it is a very unskillful and slovenly piece of legislation. It contains (sections 5 and 6) a general repealing clause "of all laws and parts of laws in conflict" with itself, and several special ones, and sundry saving clauses in which no mention is made of section 639 of the Revised Statutes. But section 2 of the act contains subsection 3 of said section in a modified form, and so far repeals the latter by implication. It reads as follows: "And where a suit is now pending, or may be hereafter brought, in any state court, in which there is' a cont1'o'Oersy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district. at any time before the triaZ thereof, when it shall be made to appear to said circuit court that, from prejudice or local influence, he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may. under the laws of the state, have the right, on account of such prejudice or local influence. to remove said cause: provided, that, if it further appear that ,said suit can be fully and justly determined as to the other defendants in the state court without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be relI).anded, so far as relates to such other defendants, to the state court, to bep'rO?eeded with therein," 'rhen follows an independent temporary provision, intended to apply to suits pending in the circuit courts, which had then been removed from the state courts under subsection 3 of section 639 of the Revised Statutes, "on the affidavit of any party p7aintiff" therein, on account of prejudice or local influence, which authorizes the circuit court, at any time before trial, on the application of the other party, to "examine into the truth of said affidavit and the grounds thereof," and to remand the case unless the statement appears to be true. Thus it appears that, by the act of 1887, the pendency of a suit in which there is a "controversy" between citizens of different states is again made the ground of removal, as in the act of 1876, in cases of prejudice or local influence, while the right to have such removal is confined to the "defendant." The clause concerning an examination into the truth of the affidavit for removal when made by the "plaintiff," has no application to a removal had under the act, and which did not take place before the passage of the same,under sub-

FISK'll. HENARIE.

421

section 3 of section 639 of the Revised Statutes. In the case of a removal under this subsection, the party seeking it is required to make an affidavit to the effect that he believes he cannot obtain justice in the state court, on account of prejudice or 10<',;11 influence. The act of 1887, however, only provides that such fact "shall be made to appear" to the circuit court; but as to when or how it shall be made to appear, or how such removal may he effected, it is silent. This class of cases is expressly excepted from the operation of section 3 of the act prescribi.ng the mode of removal thereunder, generally. It follows that so much of section 639 of the Revised Statutes as relates to the method of removal on account ef prejudice or local influence,. and the proof thereof, is not in conflict with the act of 1887, and is therefore still in force and applicable to suchremova!. And thus, in the mode provided by statute, it appears to the court, fr0n:! the affidavits of the defendants Henarie and that, from prejudice and local influence, the defendants will not be able to obtain justice in the state courts. It is sufficient that they have made oath that they so believe, without setting forth the facts or circumstances on which such belief is founded. Jl!Ieadaw V. Jl!I. Co. v. Dodds, 7 Nev. 147 See, also, Bawen v. Chase, 7 Blatchf. 255. It was competent for congress to have authorized the removal of the case on the diverse citizenship of the parties alone. But it has seen proper to require in addition the oath of the applicant for removal that he believes he cannot obtain justice in the state tribunal, on accQunt of prejudice or local influence. Any fact the existence of which is made a condition precedent to the removal of a case, and which is also necessary to the jurisdiction of the circuit court, may be controverted by the party against whom such removal is had. But the proper mode of doing this is not by affidavits, but by a dilatory plea in the nature of a plea to the jurisdiction, on which the question may be submitted to a jury for determination. Jl!IcDonald v. Flour Jl!IilllJ 00.,31 Fed. Rep. 578; Coal v. Blatchford, 11 Wall. 177. But the affidavit of the defendants concerning their belief as to their ability to obtain justice in the state tribunals is not a jurisdictional matter, but only a condition precedent to their right of removal, the same as the oath to a demurrer, required by the equity rule 34 as a condition precedent to filing the same, "that it is not interposed for delay." And in my judgment, when such affidavit is made and filed in the manner and terms prescribed by the statute, the condition is performed, and the truth of the matter is not open to question. No case has been found in which it has been allowed or even attempted; and the action of congress in providing specially in the act of 1887 for examining into the truth of the affidavit in pending cases, where the removal was had on the affidavit of the "plaintiff," is a legislative construction of the act to the same effect. In a suit between a citizen of the state in which it is brought and a citizen of another state, subsection 3 of section 639 of the Revised Statutes gave the latter, whether he was plaintiff or defendant, the right of removal. The courts, following the narrow construction given to the same language in sections 11 and 12 of the judiciary act of1789, (Beards-

422

FJiJDERAL REFORTEB.

leyv. Torrey,4'wash. C. C. 286; Smith v. Rines, 2 Sum.338; Hubbard v. RailroarJ,ao., 3 Blatchf.S4; : Wood v. Davis, 18 How. 467; Coal v. Blatchford, 11 Wall. 172,) heldthtlt, although the designation ofthe party plaintiff Of defendant is in the:singular number, it was intended to embrace all the persons who were on one side of the controversy, so that, if either of two or more partiesp!l:tintiffwere citizens of the same state with either of two· or more parties defendant, the case could not· be removed. As the law then stood before the. passage of the act of 1887, this action could not have been removed to this court by either of the defendants; for some of'them are citizens .of Qregon,-the same state as the plaintiff. But, by the act of 1887,the found'ation of the right of removal is the mere pendency of a suit in a state court between a citizen of the state, in which it is brought and a citizen of another state. It is enough if thepe is a.suit pending in snch court, "in which there is a controversy betweeI;l a citizen of the state in which the suit is b;rought and a citizen of another state.." And, While the right to remove such suit is in effect thereby denied to tlle plaintiff, it is not given to the defendant collectively, but to "any" one of them who "is a citizen of another state." These material changes in the language of the statute can only be considered, under the circumstances, as showing an intention on the part of congress to restore the act ofl867 in this respect, as it was before the compilation of the Revised Statutes. It is no longer necessary that the "suit" should be between persons of diverse citizenship. It is sufficient if there is a "controversy" involved in the suit between two such persons,-the one being a citizen of the state in which it is brought,-whatever may be the citizenship of the other plaintiffs or defendants. Nor can the right of removal thus given to ,e any" defendant having the prescribed citizenship, with any respect for the ordinary significance of language, be construed to include U all" the defendants, and so be denied to "any," unless "all" have such citizenship. In support of the contrary view of the matter, it is urged that the act of 1887 is a piece of what may be called "confederate" legislation, in which there is a manifest purpose to restrain and limit the authority of the national and therefore it is not likely that it was intended to enlarge their jurisdiction in this class of cases. That such appears to be the general' character of the act maybe admitted. But it appears to be a piece of patchwork, in which .probably a number of hands were gaged, with doubtless somewhat diverse purposes. But be this as it may, no court would be warranted, on the strength of such a suggestion or circumstance, in construing the phrase"any" defendant to mean" all" the defendants, be they more or less. Admitting this to be the'proper construction of the statute, counsel for the plaintiff insists that it is unconstitutional. The question whether congress has the power to provide for the removal of a case from a state to a national c011rt, in which some of the necessary parties defendant are citizens of the same state with the parties plaintiff, or some of them, has not been directly decided by the supreme court. It was argued before that tribunal with marked ability and research in the case of The

I

FISK V.

HENARIE.

423

constitution. The case would still be a controversy between citizens of different 8tates." The constitution (article 3, § 2) provides:

But} as the court held that congress had not then undertaken to confer such power on the circuit it was not decided. Mr. Dillon (Rem. Causes, § 27) is clear that the judicial power of the United States includes such cases, and therefore congress may corifer jurisdiction over them on the circuit courts, by the process of removal or otherwise. In Lockhart v Horn, 1 Woods, 628, Mr. Justice BRADLEY, in considering a case brought in the circuit court under section 11 of the judiciary act of 1789, said "Were this an original question, I should say that the fact of a common state citizenship eXisting between the complainants and a part only of the defendants,. ptovided the other defendants were citizens of the proper state, would not oust the court of jurisdiction. It certainly would not under the

Sewing-Ma.chine Cases} 18 Wall. 553.

"The judicial power shall extend to all cases in law and equity, arising under the constitution of the United States, and treaties made or which shall be made under theirauthority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies towhich the United States shall be a party; to controversies between two or more states; between a state and citizens of another state: between citizens of different states; between citizens of the same state claiming lands under grants of different states: and between a state, or the citizens thereof, and foreign states, citizens, or subjects." The change in the language of this section from the use of the term "cases" to "controversies" is apparently deliberate and premeditated; and, in the case of an instrument so carefully prepared and considered as the constitution of the United States, cannot be regarded as fortuitous, or without special significance. In my judgment, it was intended by the use of the terms "cases" and "controversies" to distinguish between an ordinary action or suit, which may include many parties plaintiff or defendant, and involve the examination and consideration of more than one item of dispute or controversy, and so much or such part of such proceeding as may only constitute a controversy between two or more of said parties, who are citizens of different states. There may be a controversy in a case which is less than the whole of it. Both the act of 1875 and that of 1887 (section 2) make express provision for the removal of a case-the whole case-in which there is a separate controversy between citizens of different states. A controversy between citizens of different states is none the less such a controversy because they are not the only parties to it. A controversy, in the contemplation of the constitution, is but a dispute concerning rights or wrongs cognizable. by law, and which may therefore be the subject of an action or involved therein. To confine the operation of the words, "controversies between citizens of different states," to cases wherein the controversy is exclUBively between citizens of different states, is to interof judicial power which materially limits polate a word into the and restrains its operation. As well might it be claimed that the judicial power extends "to all cases affecting ambassadors, other public min-

424

FEDERAL REPORTER. \

isters, and consuls," and them 'only. Then a suit might be brought in a state court against or affecting a foreign minister: and congress would be powerless to authorize its removal, if the plaintiff took .the precaution, as he doubtless would, to make some third person a co-defendant. What the effect of such a state of things would be on the relations ofthe United States with other governments may be easily imagined. The extension of the judicial power over a controversy between citizens of different states isnot to be rendered nugatory by- the accidental 'Circumstance that it forms a part of, or is involved in, a suit between citizens ofthe same state. On the contrary, the jurisdiction in such cases must be held to include all the incidents which inhere in or attach to the controversy "Congress has power to make all laws which shall be necessary and proper to carry into execution" the grant of judicial power, (Const. U. S. art. 1, § 8,) and thus make it equal to the great and beneficent purpose for which it was intended. And in so doing it may, in my judgment, confer jUl'isdiction on the circuit courts of a case involving- a .controversy, whether separable or not, between citizens of different states, by removal or otherwise; and this, although some of the parties plaintiff and defendant in the suit are citizens of the same state. The grant of judicial power is one of the most effective means by which the framers of the constitution undertook to "form a more perfect union" between the people of the several states, and to protect them in their interstate intercourse and business from the danger of injustice growing out of state prejudice and local influence. Hamilton, in the Federalist, (No. 80,) in discussing this subject, says: "In order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national jUdiciary ought to preside in all cases in which one state or its citizens are opposed to another state or its citizens To secllre the full effect of so fundamental a provision against all evasion or subterfuge. it is necessary that its construction should be committed to that tribunal, which, having no local attachments, will be likely to be impartial between the different states and their citizens, and whic\1, owing its otlicial existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded." The mere fact that there are parties defendant in this case who are citizens of the same state with the plaintiff ought not to weigh against this conclusionj for, so far as they are concerned, it ought not to be a matter of any moment in which tribunal the case is tried; for, as was said by Mr. Justice MILLb'R, in Trust Co. v. Macquillan, 3 Dill. 381, "the object in each case is to secure an impartial tribunal, and the federal courts are not courts for non-residents more than for residents." But to compel non-residents to litigate a controversy with a resident in .a court of his state because other residents of such state are, either from policy or necessity, joined with him as defendants, is to compel him to submit to the judgment of a presumably partial tribunal. And if it was doubtful how this question ought to be decided, it would be proper to rule against the plaintiff. The act of 1887 allows a party moving to remand a cause the right to take the question to the supreme court, but denies it to his adversary.

FISK 'lJ. HENARm.

425

Was the application to remove the case made in time? It will assist in the examination of the decisions on this question, to group together the language of the various acts on the subject. Under the act of 1866, (14 St. 356,) the application for removal was required to be made "before the trial or final hearing." In the act of 1867 the l/Luguage was changed to "final hearing or trial." Section 639 of the Revised Statutes, which contains a compilation of these two acts, went back to the language of the act of 1866,-"before the trial or final hearing of the suit." The act of 1875 required the application to be made "before or at the term at which said cause could be first tried, and before the trial thereof." This caUfle was removed under subsectiou 3 of section 639, which requires the application to be made "before the trial or final hearing of the suit." The following are the principal cases arising under these acts on the question'of the time of removal: Dart v; McKinney, 9 Blatchf.359, was a case of removal under the act of 1866. A judgment was given in the state court on the report of'a referee against the defendants, which was reversed,and a new trial granted; whereupon one of the defendants removed the cause; and,on a motion to remand, it was held that the act gave the right of removal "at any time before the trial or final hearing of the cause," and not "aJt any time before a trial or final hearing of the cause." Intmrance Co. v. Dunn, 19 Wall. 214, was removed under the act of 1867. The case was first tried in a court of the state of Ohio, where there was a verdict against the company. The law of the state gave the latteta right to a new trial on giving bond to abide by and perform the judgment of the court, which it did, and then removed the case to the circuit court. In the progress of the same, it was taken to the supreme court, on the question of whether the removal was taken in time, where it was decided in the affirmative. It was held that the adjective "final" applied to "trial" as well as "hearing," it being understood before the former; and some weight was given to this circumstance. The conclusion of the court was this: "It was intended to permit the removal at any time before a hearing or trial final in the cause as it stood when the application for the transfer was made." See, also, Stevenson v. Willia:IlL8, 19 Wall. 575. In Vannever v. Bryant, 21 Wall. 41, there was an application for"removal under the act of 1867. The case was this: A trial and verdict was had in the state court. The defendants moved for a new trial,and, pending this motion, the non-resident defendants applied for a removal, which was refused, on this ruling the case went to the supreme court. The ruling was affirmed on the authority of The Sewing-Machine Ca8es, 18 Wall. 553. In delivering the opinion of the court, the chief justice also said that the application was also properly refused, because the case was not then pending for trial, and added: "After one trial the right to a second must be perfected before a demand for the transfer can be properly made. Every trial of a cause is final until, in some form, it has been vacated." JifleVns v. Sweetzer, 102 U. S: 177, Wall removed under the act of 1866,

426

FEDERAL REPORTER.

and afterwards remanded. to the state court. From the order remanding the case an appeal was taken to the supreme court, where the same was affirmed; This was a sl1it for an account of rents and profits, in which there was a decree in the common pleaS dismissing the bill. On an appeal to the supreme court of the state, this decree was reversed, the bill reinstated, and the com'PlOn pleas instructed to refer the case to a master to take an ,account, for the purpose of making "a final decree in the premises according to equity." .Two years after the reference, but before any report was filed, the defendant applied to have the case removed to the circuit court. ThE! s:upreme court held that the hearing in the state Bu,preme court was a final one, and that nothing remained to be done but to continue accounts could be taken aqd the details ofa final decree settled," and therefore the application was too late. In the course of the opinion, Mr. Justice MILLER said, (the hearing of the case ,was taken up by the supreme court on the appeal:from the common pleAS:) "If,on the appeal, the decree below had beenl'aversedand the eausesent ba(;lk for a rehearing; then the final fortha purposes of the statute now under consideration, would not have..Qegun untiUhe court below had again entered upon the determinationof the cause." . . A71ey v. Nou, 111 U.! $.472, 4 Sup. Ct. Rep. 495, was commenced in a lltate. court of New York, and removed on the petition of Alley, one ofthe:defendants, under the act of 1875, to the circuit where a motiop, to remand was allowed. From·;this ruling an appeal was taken to thes!lpreme court, where the decision of the circuit court was affirmed, ·on the ground that the application for the removal came too late. The case was ,this: Mleyand other defendants demurred to the complaint in the statooourt bec.ause it did .not state facts sufficient to constitute a cause Qf action; which demurrers were overruled, with leave to the defendllnts .to withdraw their demurrers and answer-within a time prescribed, .which W/lS done, and on the day following the petition for removal was filed, The question argued before and decided by the court is that the trial of an issue of law, s11Gh as,arises on a demurrer. to a complaint for the cause specified. is " a trilll of the action within the meaning of the act of 187.5." In the course of his opinion the chief justice remarked that the state court, before entering a final judgment on the demurrer, gt:anted a new trial with leave to amend the pleadings j and then said,arguendo: "The situation Of the case at this time. for the purpose of removal. was precisely the same as it would be if the trial, instead of being on an issue of law involving' themerits, .had been on an issue of fact to the jury, and the di13cretion, allo.weda new, trial after We can hardly court had, believe it would be claimed that a rem(jv'al could be had in the last case, and. , ' in OUf opinion, it caimot in the first."
Railroaq,: v. :]Jates, 119 U..S. 464, 7 Sup. Ct. Rep. 285, was an action brought in. a ()ourt ofcommoJ;l pleas in Ohio against the railway company. A general demurrer to the petition was sustained by the court, this was and judgmentgivell for

FISK t'. HEN'ARIE·..

427

reversed by the district Courtl and the case remanded to the common pleas for further proceedings. There the defendant filed a petitiDn for removal.under subsection 3 of section 639 oHhe Revised Statutes, on the ground of prejudice and local influence, and offered security, such as is prescribed by said section, rather than the act of 1875. For this the petition was denied, and the case went up the long ladder of appeals, with varying fortune, until it reached the supreme court of the state, where the refusal to allow the removal was affirmed. From there the case was taken to the supreme court of the United States, where the judgment of the state court was reversed. The argument of counsel for Bates appears to have been principally devoted to the sufficiency of the security, and the court held that it was properly given under section 639 of the Revised Statutes; but the question of whether the petition was filed in time was also presented and decided. The chief justice disposed of it as a matter scarcely open to argument, in these words: "This petition was filed after a new trial had actually been granted, and while the cause was pending in the trial court for that purpose. It was, therefore, in time, and no objection is made to its form." This is the latest case in the supreme court on this question to which my attention has been attracted. It expressly decides that, under subsection 3 of section 639 of the Revised Statutes, 'while a cause is p.ending for triat in the state court, a petition for its removal is in time, without reference to the number of trials that may have been had in it before. The suggestion of the or learned chief justice, to the contrary, in All&y v. Nott, mpra, on which the plaintiff seems to rely, must yield to this direct decision of the court announced by himself. , There is no other authority. that gives any countenance to the proposition that the phrase "before the trial,".as used in any of these removal acts, means any proceeding other than that which results in a verdict or judgment, subsisting and in fmce when the application is made. Where the word "trial" is qualified by the word "final," as in the act of 1867, this <lonclusion is inevitable. But even in the acts of 1866 and 1875 and section 639 of the Revised Statutes, where the phrase used is simply <'before',the trial," the language fairly construed means, as Mr. Justice BLATCHFORD said, in Dart v. McKinney, mpra, "the trial of the case, and not a trial of it." In the nature of things, the trial of the case is not any one, but the final one,-the one that stands as a thing accomplished in the case. Where a jury is discharged without a verdict, the proceeding is properly known as a mistrial j and where a verdict is set aside because it ought not to stand, the result is the same. The proceeding has miscarried, and the consequence is not a trial but a mistrial. And, in the case of a removal for prejudice or local influence, there is a good reason for giving the non-resident party a right to make the application after a mistrial, for, as was said by Mr. Justice Mn.LI<lR, in Hess v. Reynolds, 113 U. S. 80, 5 Sup. Ct. Rep. 377, "the hostile local influence may not become known or developed at an earlier stage of the proceeding." In Spear's Law of the Federal Judiciary, (468,) after an examination of the cases on the subject, the author says that, whenever a verdict is

428

r.EDEBALREFORTER.

ilet aside or the jury disagree, the weight of authority is that the case ill restored to the status it had before any trial took place, and adds: "The theory on which this view rests is that the first trial, being wholly vacated, or resulting in a disagreement of the jury, was a nullity, and hence the case stands, as to the right of removal, just as it would have stood if no such trial had been had." It does not appear that the resident defendants desire this case remanded as to them or at all. It would be so much additional expense and trouble to the plaintiff to try it in two parts in different courts. The motion to remand is denied.

OREGON

&

TRANSCONTINENTAL

Co.

'V. NORTHERN PAC.

R. 00·

. (Oircuit Oourt, S. D. ·New York. August 20, 1887.)
EQUITy-PLEADING-SUPPLEMENTAL BILL.

Under the liberal practice in the circuit court touching applications, under the fifty-seventh rule of practice in equity, for leave to file supplemental bills, the court will not, on suoh an application, proceed to try the cause, and to determine questions which may more appropriately be raised by demurrer, but will grant such leave although. upon the facts set forth in the su.pplemental bill. there may be grave doubts as to the complainant's right to the relief prayed for therein.

In Equity. On motion for leave to file supplemental bill. Joseph H. Blair. for Oregon & Transoontinental Co. Henry Stanton, for Railway Co.
LACOMBE, J. The practice in this court touching applications, under the fifty-seventh rule, for leave to file .supplemental bills, has always been liberal to the applicant. Rightly so, because the granting of such leave rests so largely in discretion that an unfavorable decision would practically debar the applicant from vindicating the sufficiency of his pleading, or the equity of his cause of action before the appellate court. This court will not, therefore, on such an application, proceed to try the cause, and to determine questions which may more appropriately be raised by demurrer. While in the case at bar, and upon the facts set forth in the supplemental bill. there may be grave doubts as to the complainant's right· to the relief prayed for in such bill, that issue will not be tried on this motion. ' Motion for leave to file supplemental bill granted.

CHEMICAL l:IA't. BANK

'I).

KISSANE.

429

CHEMICAL NAT. BANK

'I).

KISSANE.

(Circuit OQurt, No D. Oalijornia.

October 3, 1887.)

1.

LIMITATION OF

The fact that a debtor adds a name to his real name, removes to another state, and remains in such state under his assumed name until the cause of action against him on the dem!\nd is barred by the statute of limitations, affords no ground, under the statute of limitations of California, for enjoining the debtor from setting up the statut!l of limitations as a bar to an action at law to recover on the demand. . The statute of limitations of California applies to suits in equity as well as actions at law. The statute of limitations of California provides for every exception to the running of the statute intended to be allowed, and every case time for the running of the statute is postponed beyond the time prescril;>ed by the general provisions of the act. These exceptions are as available at law as in equity, and. the remedy at law being complete, there is no ground for equitable relief.

TO PLEAD STATUTE-EQUITY.

2.

SAME-INEQUITY.

8.

SAME.

(Syllabu8 by the Oourt.)

E. D. Sawyer and Mr. Burnett, for complainant. Garber, Thornton & Bishop and T. 1. Bergen, for defendant. Before SAWYER, J.
SAWYER, J., (orally.) This is a bill in equity to restrain the defendant from setting up a plea of the statute of limitations on a demand for money said to have been fraudulently obtained from the Chemical Bank, by Kissane and two other parties, more than 30 years ago,-as far back as 1855. The complainant here files a bill to restrain the defendant from settingup the plea ofthe statute of }imitations, Kissane having been a resident of this state for 30 years. The ground for relief is, that after defendant obtained this money, he went to Nicaragua, enlisted in Walker's army, and changed his name, or rather added to his name., His name being William Kissane, he took on the name of Rogers; so that the name he afterwards went by, was, William Kissane Rogers, or William K. Rogers, as he signed it. It is alleged in the bill, that it was publicly reported, or rumored, that Kissane was killed in Nicaragua; that complainant believed that report, and therefore did not hunt for him. Complainant now says, that this change of name is a fraud upon complainant, and is a good equitable ground for restraining defendant from setting up the statute of limitations in a suit upon the demand.. Undoubtedly , the old equity doctrine before the cases were covered by statutes of limitations, was, that in a certain class of cases, a party Qould be restrained on a bill in equity from setting up the statute of limitations. On examination of those authorities, it will be found in all of them, I think, that there was some legal obstacle interposed by the party himself, ()f by the law, which prevented the prosecution of the suit. They, were