8 F. 650 (W.D.Tenn. 1881), Woolridge v. McKenna

Citation:8 F. 650
Party Name:WOOLRIDGE, Assignee, etc., v. McKENNA and others.
Case Date:August 22, 1881
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 650

8 F. 650 (W.D.Tenn. 1881)

WOOLRIDGE, Assignee, etc.,

v.

McKENNA and others.

United States Circuit Court, W.D. Tennessee.

August 22, 1881

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Metcalf & Walker, for the motion.

W. M. Randolph, contra.

Page 652

The first ground of the motion to remand was because the transcript from the state court was not filed until the second day of the next succeeding term of the federal court. In explanation of this delay, the attorney for the petitioner filed an affidavit, the substantial part of which is in the following words:

'I further state that I obtained said copy a few days before the first day of the present term of this court, for the purpose of examining the same to see that it was correct. I had examined the said copy before the first day of the term, and had determined to file it according to the condition of the bond, but on the first day of the term, being hurried about many matters of business, and my presence being required in one or more of the courts-- state or federal--then in session, the copy of the record, or the filing of it, escaped my mind, and I did not think of it till the night of that day and after the office of the clerk of the court had been closed for the night. Early in the morning of the next day I brought the copy of the record from my office to the court-house and had the clerk file it at once. I further state that the omission to file the said copy arose from the cause stated, and not from any other cause, and not from any desire or intention to hinder or delay the suit or the progress thereof.'

The second ground for the motion was that the petition for removal shows upon the face of it that the case is not removable:

(1) Because neither a next friend or guardian ad litem of a minor defendant can remove the case, or enter an appearance in the federal court in compliance with the condition of the bond for removal; nor can the father of the said minor, as such father, do so. (2) Because all the parties-- plaintiff and defendant-- are shown to be citizens of Tennessee, and the allegation of the petition to the contrary is shown by the record to be untrue.

The facts appearing by the record are that the plaintiff, who is a citizen of Tennessee, filed this bill as assignee in bankruptcy of Robert McKenna, who is also a citizen of Tennessee, against the said bankrupt and his daughter, Maud B. McKenna, a minor, who is alleged in the bill, according to the state practice, to be 'a resident of Shelby county, Tennessee, as are the other defendants, all being likewise citizens of Tennessee. The object of the bill is to set aside alleged fraudulent conveyances of land in Shelby county, Tennessee, made by the bankrupt for the benefit of his wife and children, all of whom have died since the conveyances except this defendant, Maud B. McKenna. The petition for removal purports to be 'the petition of Maud B. McKenna, by her father and next friend, Robert McKenna,' and is signed and sworn to by him. It states that she is 'a citizen and resident of Louisville, in the state of Kentucky, and that all the other parties to this suit, both plaintiff and defendants,

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are citizens and residents of the state of Tennessee,' and contains all other necessary jurisdictional averments. The bond for removal is that of Robert McKenna himself, and is conditioned that he will, 'as next friend of Maud B. McKenna, on the first day of the next session, etc., enter therein a copy of the record of said suit, and appear therein and enter special bail,' etc., etc.

Since the transcript was filed in this court the defendant Robert McKenna, in aid of his petition for removal, and in opposition to the motion to remand, has filed the following affidavit, viz:

'Robert McKenna, being duly sworn, says he is the Robert McKenna referred to in this suit, and is the father of Maud B. McKenna, one of the parties thereto; that she is now between five and six years old; that he has been living at White's Station, in Shelby county, Tennessee, for the past 19 years; that during the yellow fever epidemic of 1873 the mother of the affiant, and his then wife, died of yellow fever at White's Station; that in 1878, when Memphis and the surrounding country was visited by the yellow fever again, that two children of affiant-- being all of his children except Maud B. McKenna-- also died of yellow fever at White's Station. These two children died September 18 or 19, 1878. A day or two afterwards affiant, with his then wife, and child, Maud B. McKenna, left the state of Tennessee and went to Louisville, Kentucky, it being the intention of all parties that affiant's wife and child should reside permanently in Louisville, affiant being fearful that by a continued residence in Shelby county he would lose the remainder of his family. Affiant expected, himself, to return to Shelby county for the purpose of trying to dispose of the property that his wife owned, but expected himself, after such disposal, to go to Louisville, Kentucky, to reside with his family. It was, however, his first intention to remove his wife and child permanently to Louisville, Kentucky, when they and himself left Shelby county for that place. After arriving at Louisville, Kentucky, the wife of affiant was taken sick of yellow fever, contracted at Shelby county, Tennessee, and died of that disease at Louisville, Kentucky, October 1, 1878. As before stated, on account of the repeated prevalence of fever in Shelby county, it was affiant's intention to change the residence of his wife and family, and his own, as soon as possible, and this intention became more fixed, if possible, after the death of his wife. After the death of affiant's wife, affiant being then a single man, was unable to properly take charge of a girl of the age of Maud B. McKenna. Affiant therefore placed said Maud B. McKenna with a married sister of his, Mrs. Jane Kirkup. The husband of Mrs. Jane Kirkup is John Kirkup, and they live in Louisville, Kentucky. By the consent of John Kirkup and the consent of Mrs. Kirkup the said Maud B. McKenna was placed by affiant with them, to live permanently with them in the state of Kentucky. The reasons for so doing are given above. The said Maud B. McKenna was so placed there with the intention of all parties that she should permanently reside there in the state of Kentucky, and with no intention of her returning to Tennessee. The said Maud B. McKenna has so continuously resided with Mr. and Mrs. Kirkup. At no time since then has there been any change of

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this intention of any of the parties to change the residence of Maud B. McKenna, and it is now, at this date, the intention of this affiant, Mr. and Mrs. Kirkup, and the child herself, that this residence of her with Mr. and Mrs. Kirkup for the future shall continue. Affiant was unable to carry out his own intention to go to Louisville, Kentucky, but he and no one of the parties has ever had any other intention than that Maud B. McKenna should be a resident of Louisville.'

There has, also, since the transcript was filed, been entered in the rule-day order book of this court the following appearance of Robert McKenna, as guardian of the defendant Maud B. McKenna; and the letters of guardianship have been filed, showing that he has, since the suit was commenced, and since its removal here, been appointed guardian of the minor by the proper court in Tennessee, viz.:

'Robert McKenna, who has been appointed, by the probate court of Shelby county, guardian of the defendant Maud B. McKenna, who is a minor, brings into court here his letter of guardianship, and enters his appearance, as such guardian, in behalf of the said minor, his said ward, to this suit.

'WM. M. RANDOLPH, Sol'r.

'Copied from Rule Docket, p. 42.'

HAMMOND, D.J.

The affidavit of the attorney for the petitioner shows that the omission to file the transcript on the first day of the next session of this court was an inadvertence. It was filed on the next or second day of the session, and no injury could possibly have resulted to the other parties by the failure to comply with the letter of the statute. It would be, therefore, a very harsh rule, and entirely at variance with the analogies of the practice in this state, to hold that a slip like that had defeated the jurisdiction of this court and destroyed the efficacy of this statute. I have been much perplexed by the conflict of opinion shown by the very few cases on the subject in the different circuits, and more by the very strict rulings of the supreme court in the construction of the somewhat analogous statutes regulating the jurisdiction of that tribunal on writs of error and appeal. The principle involved depends upon a solution of the question, whether the statute is directory or imperative, and this is always a question of delicacy and the utmost difficulty; particularly so, since there is well-grounded complaint that the courts are too ready on one pretext or another to dispense with the command of the legislature by an application of this rule of construction. I fully agree with all that the supreme court of Mississippi said on this subject in

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Koch v. Bridges, 45 Miss. 247, 258, and recognize the danger of substituting the caprice or will of the judge for the command of the statute. Nevertheless, there is no doubt whatever that from the beginning of our law the courts have exercised the power of departing from the letter of the statute to attain the object of the legislature in passing it. The Statute of Merton, c. 3, required a certain character of case to be tried before the first jury, but it was construed that where there was no first jury it might be tried before the others; 'for the statute (albeit it be penal) shall not be so literally expounded that if it cannot be...

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