Bryan v. Ponder

• Decision Date: 30 November 1857
• Parties: Hardy Bryan, plaintiff in error. vs. Ephraim G. Ponder,trustee, defendant in error.
• Court: Georgia Supreme Court

23 Ga. 480

Hardy Bryan, plaintiff in error. vs. Ephraim G. Ponder, trustee, defendant in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1857.

In Equity, from Thomas Superior Court. Decision by Judge Cochran, at June Term, 1857.

This was a bill filed by Ephraim G. Ponder, trustee of Mrs. Mary A. E. Atkinson, against Hardy Bryan (formerly of the State of Georgia, but at the time of the filing of the bill a citizen of the State of Louisiana), and Shadrack Atkinson, the husband of said Mary A. E., the cestui que trust, of the State of Florida.

As the decision of this Court is made upon questions not arising out of the facts of the case, it is not necessary to state them.

The bill amongst other things, prayed for a ne exeat against Bryan, which issued under the sanction and order of the Chancellor, upon the following affidavit made by the cestui que trust, to wit:

Georgia, Thomas County.

In person appeared before me, Thomas Simmons, a Justice of the Peace in and for said county, Mary A. E. Atkinson, who being duly sworn, deposeth and saith, that, to the best of her knowledge and belief, the statements in the above bill are true and correct in fact.

(Signed) MARY A. E. ATKINSON.

Nov. 30th, 1855.

Thomas Simmons, J. P.

The bill was returnable to May Term, 1856, at which Term complainant applied for an order to have service perfected on Atkinson by publication. Defendant, Bryan, had been arrested under the writ of ne exeat issued, and had given bond with security, as required. At December Term, 1856, the usual rule was taken, requiring the defendant to appear at the next Term of the Court, and plead, answer or demur, not demurring alone, to the bill. At the next Term, being June Term, 1857, Bryan appeared and petitioned the Court for a removal and transfer of the case to the Circuit Court of the United States for the District of Georgia, in accordance with the 12th section of the Judiciary Act of the United States, passed in 1799, alleging that he was a citizen of the State of Louisiana, and that the amount involved exceeded the sum of five hundred dollars.

The Court refused to grant or allow the removal, on the ground that the application came too late; that it should have been made at the appearance Term, that is the Term to which the bill was returnable. To which Bryan, by his counsel, excepted.

Counsel for Bryan then moved, having filed his answer, to discharge the ne exeat, on the ground that the affidavit verifying the bill was insufficient. And further, moved to dismiss the bill on the ground that the equity was sworn off bythe answer, which motion, after argument, the Court overruled, and counsel for Bryan excepted.

W. S. Rockwell, for plaintiff in error.

Bailey, for defendant in error.

By the Court. —McDonald, J., delivering the opinion.

By the 12th section of the Judiciary Act of the United States, passed in 1789, if a suit be commenced in any State Court by a citizen of the State in which the suit is brought, against the citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, to be made appear to the satisfaction of the Court, and the defendant at the time of entering his appearance in such State Court, file a petition for the removal of the cause for trial in the next Circuit Court, to be held in the District where the suit is pending, and offer good and sufficient security for his entering, in such Court, on the first day of its next session, copies of the process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the State Court to accept the surety, and proceed no further in the cause. We think the Court below was right in disallowing the removal of the cause to the Circuit Court of the United States, but we are not agreed that the ground, on which the presiding Judge put his refusal, ought to be sustained. The Courts of the United States are Courts of limited jurisdiction;, and statutes relative to their jurisdiction, and for the transfer of the jurisdiction of causes from a State Court, must be strictly construed. After the time has passed for the removal of a cause from a State Court to a Circuit Court of the United States, the State Court can not, by agreement, consider a petition for removal as having been filed in proper time, to give the Circuit Court of the United Statesjurisdiction. Peter\'s C. C. Reports 44; Livingston vs. Jefferson, 1 Brochenbrough\'s Rep. 211, Gibson vs. Johnson. In this case there are two defendants, one resident in Louisiana and the other in Florida. They are charged with combining and confederating against the cestui que trust of complainant, and were, therefore, properly joined. One of them was served personally, and the other by publication. Only one of the defenants has appeared. For the other defendant, no appearance has been entered. For aught that appears in the record, he is satisfied with the jurisdiction of the State Court. He does not join in the petition for removal. The Act of Congress authorized the "defendant, " to file his petition for the removal of the cause. The persons who make the party defendants should join in the petition, and one party defendant should not be permitted to change the jurisdiction without the consent of his co-defendants, for if the petition succeed the whole cause must be removed. It can not be removed in part. If it go, it must go as a whole. "The right to question the jurisdiction is personal to the very parties over whom it is alleged the Court has no jurisdiction. Their co-defendants can not plead it, or demur, or move to dismiss." Rice vs. Tarver and others, 4 Ga. Rep. 592. We hold, that under the Act of Congress, all the parties defendants, who have been brought before the Court, by service, in any manner, must join in the petition to remove the case from the jurisdiction in which it was instituted, and that one defendant can not transfer the jurisdiction for another, any more than he could for that other, object to the jurisdiction. For these reasons we affirm the judgment of the Court as to the first ground of error complained of in the record.

The defendant moved to discharge the writ of ne exeat Republica, because the affidavit in support of the allegations of the bill was insufficient. The charges in the bill were sufficiently strong and positive to have justified the issuing of the writ, if they had been sworn to positively. They are, however, sworn to by complainant's cestui que trust, "to thebest of her knowledge and belief." It is no more than if the phrase "to the best of her knowledge and belief" had been annexed to each specific charge made in the bill. Every charge in the bill may be false, and yet each one may be true to the best of the knowledge and belief of the affiant. It is much weaker than an affidavit of belief, for the party does not state that she does believe. The affidavit must be positive as to the intention to leave the State, or of the declarations of the defendant to that effect. Oldham vs. Oldham, 7 Vesey, Jr., 410; Etches vs. Lance, Ib. 417. Inasmuch as this Court is of opinion that the writ of ne exeat should be discharged because of the insufficiency of the affidavit, it is...