AMSINOK V. BALDERl:lTON.
64'1
AMSINCK
et al. v.
BAWERSTON.
(OirCl/lf,t Oourt, D. Rhode 181,and. June 15, 18!l9.) BBUOVAL 011' CAUSES-NoN-RESIDENTS 011' DISTRICTS.
Under Act.Cong. March 8,1887, c.878, § 2, authorizing the removal into the plrcuit by a defendant, being a non-resident of the state of an action ofwbich circuit courts "are giveu original jurisdiction by the preceding section, " an action may be removed, though by the previous section,· requiring suits between citizens of different states to.be brought in the district of the residence of "ither plaintiff or it could not have been originally commenced in the districti neither party being resident therein.
At Law. On motion to remand to state court. This was an action at law, to recover a sum of more than $2,000, brought November.7, 1887; by citizens of the state of New York against a citizen of the state of Massachusetts, in the supreme court of the state of Rhode Island, and removed into this court upon the petition of the defendant, March 22, 1888. The plaintiffs moved to remand the case to the state court, on the ground that neither the plaintiffs nor the defendant were citizens of the state of Rhode Island, and consequently this court could not have original jurisdiction of the action, and there" fore the case could not lawfully be removed into this court, under the act of March 3, 1887, c.' 373, the material provisions of which, as amended by the act of Aug. 13, ·1888, c. 866, in respect to clerical errors in its enrollment, are as follows: "Section 1. The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds,exelusive of interest and, costs, the sum or value of two thousand dollars, and arising under the constitution or laws of the United States, or treaties made. or which shall be made, under their authority; or in which cOl).troversy the United States are plaintiffs or petitioners; 01' in which there shall be a controversy betweencitizeDs of dilferentstates, in which the matter in dispute, exceeds, exclusive of interoot and costs, the sum or value aforesaid; or a controversy between citii'.ens of the same state claiming lands under grants of. <Jif. ferent states; ,or a controversy between citizens of a state and foreil{n .states, citizens or subjects, in which the in dispute exceeds, exclUSive of rn· terest and costs, the sum or value aforesaid. ... '" ... But no person shall be arrested in oDe district, for trial in another, in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts, against any person, by any original process or proceeding in any other district than that whereof he is an inhabitant; but, where the Jurisdiction is founded only on the fact that the action is between citizens of different state!!. suit shall be brought only in the district of the residence of either the plaintiff or the defendant. Sec. 2. Any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall be made; under their authority, of which the circuit courts of the United States Bre given original jurisdiction by the precedi.ng section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other sulL of a civil nature, at law or in equity, of which the circuit courts of the United States are given jluisdicv.41F.no.12-41
FE:oER:A,L
:vol. '41.
tion by the preceding section, and which are now pending, or which may here· after be brought, in anYlltate the circuit court of the United States for We proper district by the defendant or defendants iherein, being non-residents of that state. And when, in any suit mentioned in this section, there-lilllall be a which is wholly between citizens of different states, and which can be fully determined as between them, then ei. ther one or more of the defendants actually interested in such controversy !laid suit into the circuit court of the United States for the proper A,nd, whe\:e or may be hereafter brol,lght, in any state cQurt, in ,thereie a controversy between a citizen ot thelltate in which the Buit is brought and a cltizenof another state, any defendant, belng'lhich citizen of another state, may remove snch l$uit into the ,circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to ap'pear to said circuit court that, from prejudice or local influence, he win: 110t be able to obtalri justice in such state court. of in.anyothel' state court to which the said defendant may. under the law,s, of tile ,.states .havll theright.911.,accoant of such prejUdice or local infill· enc::e.to Jemove;&aid 24 553; 25 St. John C. 'llh:uf8ton, for complainants. ' OolweU <Ie. Barney, for defendant. GRAY, Justice, (cifter stating theJacta ll8above.) The first. section of the jurisdiction act· of 1887 begins with Ii description ofthe cases of which "the circuit courts of the United"States shall have original cognizance,' concurrent with the COUTts of the several states," including cases arising under, the) constitution, laws, or treaties of the United States,' or "in which there shall be a controversy between citizens of different states." The subsequent. provisions of that section, prescribing the district in which asuit-"shall be brought," apply only to atltions commenced in a court of the United States. The second sectron; authorizing the removal into acircuit':(ioUrl of the United States of any suit brought in a state court, "of Wlli6h 'th'e circuit' c'o.U!taof the United' States are given origjulisdicti9nby se.ction," evidently,refers to the general grant of juriadiction at the beginning; of that section, and not to the; special regulations as to the district in which an action may be comnot arise undeHhe consitution, laws, menced ·. The ,present action or,treaties of States, blit falls within the second clause of the section; ,and was rightly removed into this.court on the petition of the defendan,t, being the state in which it was brought. Thisconclusion,whicll. is fortified by, a,comparsion of the various proVisions of these two sections, is in accordance with the 'cur-, of opiniorldtId de()ision ili'oth'ercirc\lits. Fales v. Railway 01;,'32 Rep. VanCe,'S8Fed.; 84;, Yi7l;aZ v. Improvement 00.,' 3J ,Wil8on ,v, Tetegraph 561, overruling Ywb Cl Co. 32 Fed.:a,ep. 183; Kansas CUy &: P·.R. 00. v.InterBtate Lum1J61'Go., :37 Fed.,Rep.:8,:pverruling Haroldv. Miming Fed. Rep. 529. . Motion ,to remand denied. 1
'.
Oo.,aa I.
',;
MARum
Cd.
t1.
ST.
LOUIS,I.
M.&
S.
RY. CO.
INS.
Co. v; ST. LoUIS, I. M. '&
eo.
(Circuit Court,
E.n..d;rkan8a8.
Fellruaryl0,1890.)
L
IxslmA!t<1E,,-SUBROGATION--PARTIEB.
Mansf. Pig. Ark. § 49S4"provlqing that, "where the assignment of a thing in aO' ttpn 18 not authorized by statute, the assignor must be a party, as plaintiff or defendant,'" has no application to an action by an insurance company which has paid against thewrong.doeroooasioning the loss,as it,does not sue as assignee, by right of subrogation, and theinsured need not be joined. ,' Under,Mansf. Dig. Ark. § 41)88; providing that "ever.y actiol1 must be prosecuted in tbe name of the real party in interest," an insurance compauy which has paid the insured the full value of hiS goods destroyed may maintain an actIon in its own name against the wrong-doer 'causing the loss. '
B.
SAME.
8. ,}Iu:iUOIP.u.COllPORATIONBo'-LEABE 011 STREETS. attempted; lease by a city council of a portion of, a street for a private use Is void, tliough owing to its decliVity, and its termination upon a river, It was seldom used, '6X<leptby footmen. 4. OP COMllUSTmLE MATERIAL IN STREET. TheapcUI;nulation of a large number. of bales of cotton on a public street, near the Dusineils center of the city, in such a manner as to obstruct the street, though a passage was left for footmen, by whom it was almost' solely used, and to endanger a cpnfiagration by its being fired by passing engines ,and smokers, is a nuisance. ' II. SAME-LIARILITY OF RAILROAD COMPANY. A railroad company, contracting to remove cotton received by a 'compressing company,from its warehouse where it was to its compressing mill, is liable' for damages occasioued by a nuisance resulting'from the accumulation of the cotton iu a public street owing to its failure to remove the same, especially when it had beEluaccustomed to take up the warehouse receipts of that company, and i8sue, bills of lading for the cotton covered thereby, reserving the right to have it com-' pressed, as in the former case it would assist in the creation or continuanoo of the, nuisance, al).4 in the latter would, as a common carrier, permit the accumulation of dangerous material, which it was bound to transport promptly. ' 6. SAlIIB-CON'rRmUTORY NEGLIG:£NCE. Where a railroad company, contracting with a compreeeing company to remove cotton reC1'lived ,by the latter from its warehouse to its comp«lssing mill, has failed to remove the same promptly, and permitted its accumulation in such a manner as to create a nuisance likel:r. toocoasion its loss by fire, persons delivering cotton at the w-arehouse are not gUilty of contributory negligence; aod, ,if they were, it would be the railrOad company's duty to avert the consequence of such negligence. '1. SAME-DuTY OF CARRIER TO CARRY PROMPTLY. A railroadcolllpany, receiving and issuing bills of lading fol' goods, cannot. excuse delay in transportation; occasioning such accumulation of danlferous materials as creates a nuisance, on the ground of an unexpected press of buslDesB. 8. iNSURANCE-FoREIGN COlllPANIEs-RIGHT TO DO BUSINESS. Where the contract of insurance is made and the policies issued in another state" · it cannot be objected that the company has not complied with the laws relating to :foreign insurance companies doing business within the state where suit is bl'ought. 9. SAlliE. , The acts of Arkausas relating to insurance forming a di8tinct title, Bot of April 25, 1873, providing that no foreign insurauce company shall do business in the state without filing with the auditor a stipulation that service may be' made on the auditor or an agent is not repealed by Acts Ark. 1887, p. 234, requiring foreign corporations to file with the secretary of state a certificate designating an agent upon whom service maybe made. .
At Law. Aetion for da.mages. , This suit was brought to recover the value of oertain cotton deStroyed by fire in the oity of Little Rock on the 14th day of November, 1887. The plaintiff, InsQrance Company, a. corporation created ,by the