Cooper v. Richmond & D. R. Co.

• Decision Date: 21 June 1890
• Citation: 42 F. 697
• Parties: COOPER v. RICHMOND & D.R. CO.
• Court: U.S. District Court — Northern District of Georgia

42 F. 697

COOPER v. RICHMOND & D.R. CO.

United States Circuit Court, N.D. Georgia.

June 21, 1890

Hall &amp Hammond, for plaintiff.

Jackson & Jackson and Pope Barrow, for defendant.

Before PARDEE and NEWMAN, JJ.

NEWMAN J.

This is a case removed to this court from the state court, under the Act of March 3, 1887, by the defendant corporation, on the ground of 'prejudice and local influence.' The questions for determination arise over the sufficiency of the affidavit made on behalf of the defendant, and on which the order for removal was made. In connection with the petition setting forth the facts as to the amount involved, the citizenship of the parties, and the residence of the plaintiff and defendant, the subject-matter of the suit, and the prayer for removal, which is sworn to by counsel defendant presented an affidavit made by S. G. Hammond, acting superintendent of the road in Georgia, who states therein that--

'From very many years' experience in railroad matters, and especially with litigation against the defendant, Richmond & Danville Railroad, in this particular, in the courts of Atlanta, in said Fulton county, state of Georgia, I know that, from prejudice and local influence, defendant will not be able to obtain justice in the superior court of Fulton county, of the state of Georgia, nor in any other court to which the petitioner may, under the laws of said state, have the right, on account of such prejudice or local influence, to remove said cause.'

The motion of the plaintiff is in these words:

'And now comes the plaintiff in the above-stated case, and makes application to the court to examine into the truth of the affidavit and grounds for removal of said case to this court, and to remand said case to the superior court of Fulton county, on the ground that it is not true that the said defendant is unable to obtain justice in said state court from prejudice or local influence.'

Two questions have been argued and submitted. First, whether or not the court was justified in signing the order for removal on the affidavit of defendant's acting superintendent, above quoted; second, whether or not the court will now hear evidence as to the existence of prejudice and local influence, or, in other words, ascertain by evidence aliunde as to the existence or non-existence of the grounds for removal. There is decided conflict in the decisions and opinions of the various circuit courts upon both of these questions. The following decisions are upon this subject: Fisk v. Henarie, 32 F. 417, 35 F. 230; Short v. Railway Co., 33 F. 114; Hills v. Railroad Co., Id. 81; Whelan v. Railroad Co., 35 F. 849; County Court v. Railroad Co., Id. 161; Malone v. Railroad Co., Id. 625; Southworth v. Reid, 36 F. 451; Huskins v. Railway Co., 37 F. 504; Goldworthy v. Railway Co., 38 F. 769; Dennison v. Brown, Id. 535; Amy v. Manning, Id. 536; Lumber Co. v. Holtzclaw, 39 F. 885; Minnick v. Insurance Co., 40 F. 369.

After a careful examination of all the cases, we are disposed to adopt the conclusion, and the reasoning by which he arrives at that conclusion, of Judge JACKSON, in the case of Whelan v. Railroad Co., supra, and to hold that where the petition for removal is accompanied by an affidavit on behalf of the defendant, by a person authorized to make it, stating of his own knowledge, as in this case, the existence of prejudice and local influence, it is sufficient to justify the order for removal. In other words, when it is 'made to appear' to this court, by affidavit made on the affiant's own knowledge, that the prejudice and local influence exist, that it is a compliance with the statute. There is nothing whatever in the act of 1887 to show how it shall be 'made to appear' to this court that the prejudice and local influence exist; and unless subdivision 3, Sec. 639, of the Revised Statutes, (Act 1867,) remain of force, there is no law prescribing a method of procedure. The language of the court in the Whelan Case, supra, is as follows:

'It is further contended that no proper proceedings have been had or taken by the defendant, even conceding its right of removal, to effect such removal. By the third section of the act of 1887, the steps required to be taken in removal cases generally are indicated; but that section excepts from its operation cases sought to be removed on the ground of local prejudice, in respect to which clause 4 of amended section 2 prescribes no mode or method of effecting that class of removals. What procedure may, then, be adopted by the party seeking or entitled to remove under this clause? In conferring the right, congress certainly intended that some process for its exercise should be within the reach of the party so entitled. We think the method or procedure for effectuating the right so conferred by said clause may be found in the two paragraphs of section 639, Rev. St., which succeed the third subdivision of said section. These two paragraphs, prescribing the method of accomplishing removals, are not in conflict with the act of 1887, and may therefore be considered as still in force, and as furnishing the proper and appropriate remedy to be employed by the party seeking a removal, and in making it 'appear to said circuit court that, from prejudice or local influence' he will not be able to obtain justice in the state courts. It is not indicated in the act of 1887 how or in what manner the fact that the removing party cannot obtain justice in the local courts, on account of such prejudice or local influence, shall be made 'to appear' to the circuit court. Judge DEADY, in Fisk v. Henarie, 32 F. 417-421, (Nov. 29, 1887,) held that the last clause of section 639, Rev. St., which immediately follows subdivision 3 of said section, might reasonably be looked to as furnishing the machinery for making it 'appear' to the circuit court that the petitioning party could not obtain justice in the state court because of prejudice of local influence. If this suggestion of that learned judge, in which I concur, is not deemed correct, then, in the absence of all provision as to the method or mode of presenting the application for removal, this court would be left free to adopt proper and suitable rules prescribing and regulating the practice in such cases; and such rules would naturally be made to conform to the practice and procedure heretofore in force in like cases. In either view of the subject, we think the mode adopted by the defendant in this case is not open to

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