Butterfield v. Home Ins. Co.

• Decision Date: 01 January 1869
• Citation: 14 Minn. 310
• Parties: JAMES BUTTERFIELD v. HOME INSURANCE CO.
• Court: Minnesota Supreme Court

Page 310

14 Minn. 310

JAMES BUTTERFIELDv.

HOME INSURANCE CO.

Supreme Court of Minnesota.

Appeal from an order of the court of common pleas, Ramsey county, denying a petition for removal of the cause to the circuit court of the United States.

The action was to recover $1,000 on a policy of insurance. The defendant at the time of entering its appearance filed its petition for removal to the circuit court of the United States, and tendered the security as required by section 12 of the act of congress of september 24, 1789. On an order to show cause the court denied the petition.

Lampreys, for appellant.

H. H. Finley, for respondent.

McMILLAN, J.

This is an appeal from an order denying the petition of the defendant for a removal of the suit from the state court to the circuit court of the United States.

The petition is framed under and the application is based upon section 12 of the act of congress entitled "An act to establish the judicial courts of the United States," approved September 24, 1789. U. S. St. at Large, p. 79. The petition sets forth facts which show a compliance with the requirements of section 12 of the act of 1789, and if that section is still in force and unchanged entitled the defendant to a removal of the suit as prayed for.

But it is claimed by the respondent that section 12 of the act of 1789 has been amended and changed by subsequent acts of congress, and that the petition upon which the application for the removal of the suit is based does not comply with the requirements of the act as amended. The act approved July 27, 1866, 14 U. S. St. at Large, c. 228, pp. 306-7, and the act approved March 2, 1867, Id. c. 196, pp. 558-9, are relied upon as amending and changing the act of 1789.

The correctness of this position is the question presented in this case. All these acts relate to the removal of actions from state courts to the federal courts. Section 12 of the act of 1789 embraces suits against an alien, and suits by a citizen of the state in which the suit is brought, against a citizen of another state when the matter in dispute exceeds $500 exclusive of costs, — together with another class of actions, to which particular reference is not necessary at this time, — and permits a removal of the action from the state court to the federal court upon the petition of the defendant, but requires the application to be made at the time of entering his appearance in the state court. The act of 1866 provides that if a citizen of the state in which the action is brought is a defendant in an action in any state court against an alien, or in an action in any state court by a citizen of the state in which the suit is brought, against a citizen of another state, and the matter in dispute exceeds $500 exclusive of costs, if the suit, so far as relates to the alien defendant, or the defendant who is a citizen of another state, is instituted for the purpose of restraining or enjoining him, or if the suit is one in which there can be a final determination of the controversy, so far as it concerns him, without the presence of the other defendants as parties in the cause, such alien defendant, or such defendant citizen of another state than that in which the action is brought, may, at any time before the trial or final hearing of the cause, file a petition for the removal of the cause, as against him, into the next circuit court of the United States, etc., and permits the plaintiff to proceed at the same time with the suit in the state court against the other defendants.

The act of 1867 embraces actions in a state court "in which there is a controversy between a citizen of the state in which the action is brought and a citizen of another state," and provides that such citizen of another state, "whether he be plaintiff or defendant, if he will make and file in such state court an affidavit, stating that he has reason to and does believe that from prejudice or local influence he will not be able to obtain justice in such state court, may at any time before the final hearing or trial of the suit file a petition in such state court for the removal of the suit into the next circuit court of the United States," etc.

It will be seen from this analysis of these acts of congress that the act of 1866 provides for the removal of a class of actions in a state court distinct from those embraced in section 12 of the act of 1789, and the terms prescribed for the removal of actions under the act of 1866 are less restricted than those limited by the act of 1789. There is, therefore, no conflict between these two acts; on the contrary, the evident intention of the act of 1866 was to extend the class of cases in which a removal might be applied for by a defendant, and the time within which such application could be made, beyond the act of 1789.

It remains for us to consider the effect of the act of 1867. This act is in terms an amendment of the act of 1866; but it does not expressly repeal either the act of 1866 or section 12 of the act of 1789. It is true, the act of 1789 embraces in its provisions cases in which the defendant is not a resident of ...