Carson & Rand Lumber Co. v. Holtzclaw

Citation39 F. 578
CourtU.S. District Court — Eastern District of Missouri
Decision Date04 June 1889
PartiesCARSON & RAND LUMBER CO. v. HOLTZCLAW.

Berry &amp Thompson, Anderson & Schafield, and B. R. Dysart, for plaintiff.

Sears &amp Gutherie and James C. Davis, for defendant.

THAYER J.

The only question that can properly be considered on a motion of this character are (1) whether the petition for removal shows on its face that the amount involved in the controversy is insufficient to give this court jurisdiction; and (2) whether the applicant for removal can remove the case, in view of the fact that he originally brought the suit in the state court to recover a sum of less than $2,000, and that his right to now remove the suit under 'the local prejudice clause' of the act of March 3, 1887, is predicated solely on the fact that the original defendant has filed a large counter-claim in such suit.

There is no doubt, I think, that the right to remove a suit under the local prejudice clause of the act of March 3, 1887, is limited to cases involving over $2,000. That was the view taken in Malone v. Railroad Co., 35 F. 625, by Mr Justice HARLAN, and it seems to me to be the only view that can reasonably be taken of the act in question. It is also clear that the counter-claim filed in the cause now under consideration is for a sum in excess of $2,000. The petitioner for removal brought a suit in the state court to recover the sum of $1,822.99, money alleged to be due for lumber sold and delivered. By way of counter-claim the original defendant interposed two demands,-- one in the sum of $725.21, for services rendered, and money and materials laid out and expended, for petitioner's benefit, and the other in the sum of $3,000 for unliquidated damages arising out of a breach of contract committed by the petitioner. The total sum that the original defendant seeks to recover on his counter-claim is $3,725.21, and, as his right to recover any portion of that sum is denied by the petitioner's reply that is prima facie the sum involved in the cross-action or counter-claim.

The second question is more difficult, and I am not advised that it has ever been decided under the act of March 3, 1887. In the case of Clarkson v. Manson, 4 Fed.Rep. 260 Judge BLATCHFORD ruled that the original plaintiff in a suit brought in the state court, against whom a counter-claim in the sum of $750 had been preferred, might remove the suit to the federal court after the filing of the counter-claim, although the sum originally sued for was less than $500. This conclusion was arrived at on the theory that a counter-claim preferred under the statutes of the state of New York was a suit, within the meaning of the removal act...

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18 cases
  • Trullinger v. Rosenblum
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • 22 Octubre 1954
    ...to the counterclaim and, being a non-resident, was entitled to remove the case. Among the first of these cases is Carson & Rand Lumber Co. v. Holtzclaw, C.C.Mo., 39 F. 578, 579, where it is held that `a non-resident plaintiff, suing in the state court, against whom a counter-claim is brough......
  • Sheets v. Shamrock Oil & Gas Corporation
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 14 Enero 1941
    ...14 Stat., ch. 196, p. 558, 28 U.S.C.A. § 71 note. 4 West v. Aurora City, 1867, 6 Wall. 139, 141, 18 L.Ed. 819. 5 Carson & Rand Lumber Co. v. Holtzclaw, C.C.Mo.1889, 39 F. 578; Walcott v. Watson, C.C.Nev.1891, 46 F. 529; Price & Hart v. T. J. Ellis & Co., C.C.Ark. 1904, 129 F. 482; Hagerla v......
  • Reeves v. Corning
    • United States
    • United States Circuit Court, District of Indiana
    • 19 Agosto 1892
    ... ... Railroad Co., Id ... 849; ... Huskins v. Railway Co., 37 F. 504 Lumber Co. v ... Holtzclaw, 39 F. 578; Hakes v. Burns, 40 F. 33; ... ...
  • Haney v. Wilcheck, 48
    • United States
    • U.S. District Court — Western District of Virginia
    • 18 Abril 1941
    ...to the counterclaim and, being a non-resident, was entitled to remove the case. Among the first of these cases is Carson & Rand Lumber Co. v. Holtzclaw, C.C.Mo., 39 F. 578, 579, where it is held that "a nonresident plaintiff, suing in the state court, against whom a counter-claim is brought......
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