142 U.S. 459 (1892), Fisk v. Henarie

Citation:142 U.S. 459, 12 S.Ct. 207, 35 L.Ed. 1080
Party Name:FISK v. HENARIE et al.
Case Date:January 04, 1892
Court:United States Supreme Court
 
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Page 459

142 U.S. 459 (1892)

12 S.Ct. 207, 35 L.Ed. 1080

FISK

v.

HENARIE et al.

United States Supreme Court.

January 4, 1892

In error to the circuit court of the United States for the district of Oregon.

Mr. Justice FIELD and Mr. Justice HARLAN, dissenting. 32 F. 417, and 35 F. 230, reversed.

[12 S.Ct. 207] The facts of the case fully appear in the following statement by Mr. Chief Justice FULLER:

This action was commenced in the circuit court of the state of Oregon for the county of Wasco, on November 13, 1883, by James H. Fisk against Daniel V. B. Henarie, Eleanor Martin. Peter Donahue, Thomas S. Martin, Edward Martin, and John D. Wilcox, to recover a commission of 10 per cent., amounting to $60,000, on an alleged sale of a tract of land known as 'The Dalles Military Road Grant,' containing about 600,000 acres, situated in the counties of Wasco, Grant, and Baker. The first three of the defendants were residents and citizens of California, and the latter three of Oregon. Service of summons was had on the citizens of Oregon, and they appeared and answered. On February 2, 1884, publication of the summons was ordered as to the California defendants, who appeared and answered August 21, 1884. The answers of the defendants controverted the allegations on which the plaintiff based his demand, and contested his right to recover anything from them, or either of them, on any sale of the lands. On September 1, 1884, plaintiff replied to the answers, and on the 16th of the same month, on motion of the defendants, the venue was changed to Multnomah county, where the plaintiff and the Oregon defendants resided when the action was commenced, none of the parties residing in Wasco county. The case was afterwards tried before a jury in the circuit court for Multnomah county, who, on April 15, 1885, found a verdict under the direction of the court for the defendants, on which there was a judgment for costs in their favor; which judgment was on January 11, 1886, reversed by the supreme court, (13 Or. 156, 9 P. 322,) and a new trial ordered, which, being had, resulted, May 21, 1886, in a verdict for the plaintiff for the sum of $60,000. On the 18th of May, before the jury was impaneled, the death of Peter Donahue was suggested, and his executors, James M. Donahue, Annie Donahue, and Mary Ellen Von Schroeder, citizens of California, were substituted as defendants. The case was afterwards heard on the motion of plaintiff for judgment, and two motions of the defendants for a new trial, and for a judgment notwithstanding the verdict. On June 30, 1886, plaintiff's motion was denied, and defendants' for judgment non obstante allowed, on the ground that the complaint did not state facts sufficient to constitute a cause of action; and thereupon judgment was entered for costs in favor of the defendants, which judgment was on October 20, 1886, on writ of error, reversed by the supreme court, (14 Or. 29, 13 P. 193,) and the cause remanded for further proceedings according to law. On December 18, 1886, 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, and the appeal was on April 18, 1887, dismissed. 15 Or. 89, 13 P. 760. Thereafterwards the cause was again tried, and the jury, being unable to agree, were discharged without finding a verdict. July 30, 1887, the defendants Henarie, Eleanor Martin, and the executors of Peter Donahue, deceased, applied to the state court for the removal of the cause to the circuit court of the United States for the district of Oregon, and on the 1st day of August, 1887, an order removing was entered by the judge of the state court.

The petition for removal was filed on behalf of those defendants who were citizens of California in the state circuit court, and addressed to the judge thereof, and set up the citizenship of the petitioners; that at the time the action was commenced and the petition was filed there was a controversy therein between the plaintiff and the petitioners; the amount involved; the alleged cause of action; the issue thereon; and proceeded thus: 'That said action has not been tried and is now pending in the above-entitled court; that from prejudice and local influence your [12 S.Ct. 208] petitioners will not be able to obtain justice in this court or in any other state court to which the said defendants may, under the laws of this state, remove said cause; that the other defendants in said action, Thos. S. Martin, Edward Martin, and John D. Wilcox, now and at all times since the commencement of said action have been citizens and residents of the state of Oregon, residing in Portland, therein; that your petitioners desire to remove said cause to the circuit court of the United States for the district of Oregon under the provisions of the act of congress approved March 3, 1887. Your petitioners further say that they have filed the affidavit required by the statute in such cases, and they herewith offer their bond, with surety, in the penal sum of one thousand dollars, conditioned as by the statutes of the United States required. Your petitioners, therefore, pray that said bond may be accepted and approved, and that said cause may be removed into the next circuit court of the United States for the district of Oregon, and that no further proceedings may be had therein in this court.' Henarie, one of the petitioners, verified the petition upon belief; and it was accompanied by the affidavit of Henarie and Eleanor Martin to the effect that they had reason to believe, and did believe, and so stated, that, from prejudice and local influence, the defendants, to-wit, the affiants and the executors of Peter Donahue, would not be able to obtain justice in said...

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