Bank of Maysville v. Claypool

• Decision Date: 31 January 1887
• Citation: 7 S.Ct. 545,120 U.S. 268,30 L.Ed. 632
• Parties: BANK OF MAYSVILLE v. CLAYPOOL and another
• Court: U.S. Supreme Court

120 U.S. 268

7 S.Ct. 545

30 L.Ed. 632

BANK OF MAYSVILLE v. CLAYPOOL and another.

January 31, 1887.

Benj. H. Smith, for plaintiff in error.

J. Holdsworth Gordon, for defendants in error.

WAITE, C. J.

This is a writ of error for the review of an order of a distrc t court, having circuit court jurisdiction, remanding a cause which had been removed from a state court, under section 2 of the act of March 3, 1875, c. 137, (18 St. 470,) on the ground of citizenship. The record shows a suit begun by the Bank of Maysville in the circuit court of Kenawha county, West Virginia, September 24, 1877, against Claypool, as maker, and Thayer, as indorser, of a promissory note. After a demurrer, which was overruled, a plea was filed November 26, on which the parties went to trial the same day before a jury. After the evidence on the part of the plaintiff was all in, the defendant Thayer prayed judgment, because, on the facts proven, no case had been made out against him. The jury, under instruc- tions from the court, found the amount due on the note, 'subject to the judgment of the court on the demurrer to the evidence,' and were discharged. Afterwards, on the tenth of January, 1878, the bank moved for leave to amend its declaration so as to show that it was a corporation created by the laws of the state of Kentucky, 'and existing in said state of Kentucky.' This motion was denied, and the bank then moved for leave 'to withdraw its joinder to the defendants' demurrer to the plaintiff's evidence,' and that the verdict be set aside, and a new trial granted. While these motions were pending, undisposed of, the bank filed its petition for the removal of the suit to the district court of the United States sitting at Charleston, on the ground that the plaintiff was a Kentucky corporation, and the defendants were citizens of West Virginia. Objection was made by the defendants, on the fourth of November, 1879, to the entry of the case in the district court, but this objection was overruled, and the cause docketed by order of the court November 17, 1880. Thereupon the demurrer to the evidence was argued and submitted to the court. On the sixth of December, 1880, there was filed in this court a petition by the defendant Thayer, sworn to September 13, 1880, for a rule on the district judge to show cause why a mandamus should not issue requiring him to remand the suit. In this petition it did not appear that the court had taken any action in the matter, and it was denied because no application had been made for an order to remand. In the opinion it was said: 'We cannot doubt that, if such an application is made, it will be promptly granted, if the facts are as they are stated here. The petition for removal was not filed in the state court until after both trial and verdict, when the...