Fisk v. Henarie

• Decision Date: 26 October 1887
• Citation: 32 F. 417
• Parties: FISK v. HENARIE and others, Ex'rs, etc.
• Court: U.S. District Court — District of Oregon

32 F. 417

FISK v. HENARIE and others, Ex'rs, etc.

United States Circuit Court, D. Oregon.

October 26, 1887

Syllabus by the Court

The provision in section 2 of the act of 1887, (24 St. 553,) 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 state the grounds of his belief.

Subsection 3 of section 639 of the Revised Statutes, as amended by section 2 of the act of 1887, gives the right to remove a suit 'in which there is a controversy between a citizen of the state in which the suit is brought and a citizen 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.

The judicial power of the United States extends to 'controversies' between citizens of different states which include a 'case' in which such controversy exists without reference to the citizenship of the other parties therein; and congress may confer jurisdiction of such controversy, including the case in which it is involved, on the circuit courts, by removal or otherwise.

An application for the removal of a case from a state court, if made while the case is pending for trial, is made 'before the trial thereof,' within 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.

George H. Williams, for plaintiff.

James K. Kelly and John M. Gearin, 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, Daniel V. B. Henarie and Eleanor Martin and James M. Donahue, Annie Donahue, 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 form and effect as required by law, and the affidavit of said Henarie and Eleanor Martin to the effect that they and each of them have reason to and do believe 'that, from prejudice and local influence,' the affiants and said executors 'will not be able to obtain justice in said state court, or in any other state court to which said defendants, under the laws of the state of Oregon, have the right to remove the same, on account of such prejudice and local influence. ' The plaintiff now moves to remand the case to the state 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 does not state the facts showing the existence of 'local prejudice or influence.' (3) The removal papers were not served on the plaintiff. (4) The petition and accompanying papers do now show a case for removal. The motion concludes with a denial of the existence of the alleged 'prejudice and local influence,' and asks the court to examine into the truth of the affidavits asserting the same and the grounds thereof; and to that end the plaintiff offers to read the affidavits of sundry persons who state that they do not believe in the existence of such prejudice or local influence.

It appears from the record that this action was commenced in Wasco county on November 30, 1883, against Daniel V. B. Henarie, Peter Donahue, Eleanor Martin, Thomas S. Martin, Edward Martin, and John D. Wilcox, to recover a commission of 10 per centum, amounting to $60,000, on the alleged sale of a tract of land belonging to said parties, known as the Dallas military road grant, containing about 600,000 acres, and situate in the counties of Wasco, Grant and Baker, in Oregon. The first three of the defendants were then residents and citizens of California, 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 discover anything from 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, the place of trial was changed to Multnomah county, it appearing that none of the parties lived in Wasco county, and that the Oregon defendants, as well as the plaintiff, lived in Multnomah county. Afterwards the case was tried with a jury in the circuit court for said 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, and a new trial ordered, that resulted on May 21, 1886, in a verdict for the plaintiff for the sum of $60,000.

On May 18th, the death of the defendant Peter Donahua was suggested, and his executors, James A. 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 defendants 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 constitute a 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 a 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 to 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 compilation of the statutes on the subject of removals passed prior thereto. Subsection 3 thereof took the place of the act of 1867. In its compilation the word 'controversy' was dropped, and the right of removal limited to a 'suit between a citizen of the state in which it is brought and a citizen of another state;' and the petition and affidavit were required to be filed at any time 'before the trial of 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 the act of 1875. Railway v. Bates, 119 U.S. 467, 7 Sup.Ct. 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 controversy 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 trial 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 by 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 remanded, so far as relates to such other, defendants, to the state court, to be proceeded with therein.'

Then follows an independent temporary provision, intended to apply to suits pending in the circuit courts, which had then been removed from...