Duff v. Hildreth

• Citation: 67 N.E. 356,183 Mass. 440
• Parties: DUFF et al. v. HILDRETH.
• Decision Date: 23 May 1903
• Court: United States State Supreme Judicial Court of Massachusetts

183 Mass. 440

67 N.E. 356

DUFF et al. v. HILDRETH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1903

COUNSEL

John

S. Richardson and Wm. Quinby, for appellants.

Alex. P. Browne, for appellee.

OPINION

KNOWLTON C.J.

This is an appeal from an order of the superior court approving a bond and a petition of the defendant for the removal of the case from the superior court to the Circuit Court of the United States. The plaintiffs are described in the bill as citizens of the United States, and residents of Pittsburg, in the state of Pennsylvania, and the defendant is described as a citizen of the United States and a resident of Old Orchard, in the state of Maine. The petition for the removal of the cause states that the plaintiffs were, at the time of the filing of the bill, and still are, citizens of the state of Pennsylvania, and that the defendant was at that time and is a resident of the state of Maine. The statute now applicable to the case presented by the petition is the act of Congress of March 3, 1887, § 2, 24 Stat. 552, c. 373, as corrected by the act of August 13 1888, 25 Stat. 433, c. 866 [U. S. Comp. St. 1901, p. 509]. The averments of the bill and the petition as to citizenship and residence, when taken together, are sufficient to show jurisdiction in the Circuit Court of the United States, so far as these requirements are concerned. They equally satisfy the requirements of the statute in these particulars as to the right of removal.

It is rightly contended by the plaintiffs that by the terms of section 2 of the statute the jurisdiction of the Circuit Court of the United States on an application for removal by the defendant of a cause from a state court is limited to such cases as might have been brought in the Circuit Court. Tennessee v. Union & Planters' Bank, 152 U.S 454-461, 14 S.Ct. 654, 38 L.Ed. 511; Mexican National R R. Co. v. Davidson, 157 U.S. 201-208, 15 S.Ct. 563, 39 L.Ed. 672. It is also contended that, inasmuch as under the statute the case could not have been brought originally in the Circuit Court for the district of Massachusetts because neither of the parties is a resident of that district, it cannot be removed to the Circuit Court in that district. But this position is not well taken. That part of the statute which gives jurisdiction to the Circuit Court only in the district where one of the parties resides is a provision for the benefit of the parties, which may be waived by the defendant. It does not deprive a defendant who is a nonresident of the state in which an action is brought in a state court from removing the case to the Circuit Court in the district where such suit is pending. Ex parte Schollenberger, 96 U.S. 369-378, 24 L.Ed. 853; St. Louis, etc., Ry. v. McBride, 141 U.S. 127-131, 11 S.Ct. 982, 35 L.Ed. 659; Cowell v. City Water Supply Co. (C. C.) 96 F. 769; Creagh v. Equitable Life Association Soc. of U.S. (C. C.) 83 F. 849; Stalker v. Pullman's Palace Car Co. (C.C.) 81 F. 989; Duncan v. Associated Press, Id. 417.

The procedure in the superior court is called in question, but we see no error in it. When the petition and bond were filed, it became the duty of the court to determine whether, on the face of the record, including the petition for removal, a case for removal was made out. In such a case, if the decision is in the affirmative, the court accepts the bond and petition, and no further proceedings are had in that court. This was the proceeding, and the only proceeding, in this case. There is no occasion for a formal order for removal, and such an order is of no effect. An order denying or forbidding removal would not be effective to prevent removal. The right of removal is established immediately on the filing of a proper bond, and a petition showing on its face that the case is one which the defendant has a right to remove. No issues of fact raised upon the petition or record can be tried in the state court. These can be heard and determined in the Circuit Court upon a petition to remand. Burlington, Cedar Rapids & Northern Ry. Co. v. Dunn, 122 U.S. 513, 7 S.Ct. 1262, 30 L.Ed. 1159; Kansas City R. R. v. Daughtry, 138 U.S. 298, 11 S.Ct. 306, 34 L.Ed. 963; Wabash Western R. R. v. Brow, 164 U.S. 271, 278, 279, 17 S.Ct. 126, 41 L.Ed. 431; Stone v. Sargent, 129 Mass. 503-506. Some of the expressions in the opinion in Amy v. Manning, 144 Mass. 153, 10 N.E. 737, are not quite accurate, in view of the later decisions of the Supreme Court of the United States quoted above.

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