Ellison v. Louisville & N.R. Co.

• Decision Date: 04 February 1902
• Docket Number: 1,001.
• Citation: 112 F. 805
• Parties: ELLISON v. LOUISVILLE & N.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

112 F. 805

ELLISON v. LOUISVILLE & N.R. CO.

No. 1,001.

United States Court of Appeals, Sixth Circuit.

February 4, 1902

This is an action brought by the plaintiff in error against the Louisville & Nashville Railroad Company in the circuit court of Campbell county, Tenn., to recover damages for personal injuries sustained by him from the alleged negligence of the company while he was in its employ as a brakeman. Before the case came on for trial the defendant obtained an order, under the provisions of the act of March 3, 1887, regulating the removal of causes from state courts, for its removal into the circuit court of the United States upon a petition presented to the judge of the circuit court of the United States setting forth that from prejudice and local influence he would not be able to obtain a fair and impartial trial or to obtain justice in said state court, or in any other state court to which the petitioner might, under the laws of said state, have the right, on account of such prejudice and local influence, to remove the same. The petition contained a statement of facts tending to support his allegation of the ground on which he prayed the removal, and was sworn to. The order of removal was made ex parte. A proper bond was tendered and accepted. Upon the filing of the transcript in the circuit court of the United States the plaintiff filed an answer to the petition for removal, in which he denied that the defendant would not be able to obtain a fair and impartial trial in the state court, denied the existence of any prejudice or local influence which would affect the trial, and denied each of the particular statements of fact alleged in the petition to prove the existence of prejudice and local influence; and the answer prayed that the matter might be inquired into by the court, and that the cause might be remanded to the state court. This answer was sworn to by the plaintiff. Thereupon, as the record states, the plaintiff 'moved the court to remand the cause to the state court and in support of said motion asked leave to introduce evidence to controvert the statements of the petition by affidavits, oral testimony, or depositions as the court may direct; and the defendant, by its attorney, objecting to the introduction of any evidence, but insisting that the order of removal by the circuit court judge was final, it was adjudged by the court that the application of the plaintiff be dismissed, and the motion to remand overruled. To which action of the court the plaintiff excepted. ' The case was subsequently brought on for trial before the court and a jury. At the conclusion of the evidence, the court being of opinion that the plaintiff had failed to make out a case justifying a recovery, instructed the jury to render a verdict for the defendant, which was done. Judgment having been entered thereon, the plaintiff brings the case here on writ of error.

H.H. Ingersoll, for defendant in error.

Before DAY and SEVERENS, Circuit Judges, and WANTY, District Judge.

SEVERENS Circuit Judge, having made the foregoing statement of the case, .

In view of the conclusion to which we feel compelled, in respect to the action of the court below upon the application of the plaintiff for leave to controvert the allegations of fact contained in the petition for removal, we shall deal with that question only. Doubtless it is right to presume that the circuit court, in refusing to hear evidence controverting the truth of the matters stated in the petition for removal, felt controlled by the authority of certain decisions made in the circuit courts of this circuit soon after the passage of the act of March 3, 1887 (corrected in 1888), relative to the jurisdiction of the circuit courts of the United States upon original process, as well as upon removal from the state courts. Prominent among those decisions is that of Judge Jackson (then circuit judge, and later a justice of the supreme court) in Whelan v. Railroad Co. (C.C.) 35 F. 849, where the subject was fully discussed by that able judge, and the conclusion reached that an order of removal made by the court upon the ground of prejudice or local influence, though ex parte, and upon the bare allegation of the general fact, was final, and could not thereafter be disturbed by disputing the truth of the evidence on which the court had acted. That decision was followed, and a like ruling made, by Judge Key in Huskins v. Railway Co. (C.C.) 37 F. 504, 3 L.R.A. 545, and Judge Jackson later on reiterated his position in Adelbert College of Western Reserve University v. Toledo, W. & W.R. Co. (C.C.) 47 F. 836. The question involved was never reached this court for determination until now, but the ruling of Judge Jackson has been followed by the judges holding the circuit courts in this circuit; not always with entire conviction of its soundness, but in deference to his official rank and distinction as a jurist, and from a sense of the respect due to the decision of a court of co-ordinate authority. In these circumstances it becomes our duty to exercise our own judgment, and to determine the question upon those reasons which appear to us to be the most cogent and satisfactory. If the reasons were balanced, we should, of course, adopt the construction of the statute which has prevailed. But upon an attentive consideration we are constrained to think the construction adopted in the Whelan Case is not correct, and fails to promote the purpose of the law. Under the statute of 1867, which had previously been in force, the suit was removable upon the sworn statement of the removing party that on account of prejudice and local influence he could not, as he believed, obtain justice in the state court. The condition was that he should pledge his own belief under oath to the fact. This, of course, afforded an easy road into the federal court for cases not within the intention of the law, not only to the unscrupulous, but to honest people needlessly anxious about their suits. The petition under that act was presented to the state court, and if it was in due form involved no inquiry. By the act of 1887 the test of the right to remove is made to consist of the fact of the existence of such prejudice and local influence as would prevent a fair and impartial trial. It is through an investigation in respect to the truth of that fact that it is 'made to appear.' The procedure to effect the removal is no longer merely formal, but an inquiry is enjoined. And in order that it may be conducted by a court charged with a duty to stop at the threshold any improper invasions of its jurisdiction, as well as to make sure of an impartial decision, the inquiry is committed to the federal court. The solicitude of congress to keep out of the courts of the United States all causes not properly cognizable there had already been manifested by the act of March 3, 1875, where, by the fifth section thereof, it was prescribed:

'That if, in any suit commenced in a circuit court, or removed from a state court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require.'

Then further, by the clause next following,-- the paragraph now under consideration,-- provision is made that:

'At any time before the trial of any suit which is now pending in any circuit court or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe, and did believe, that, from prejudice or local influence he was unable to obtain justice in said state court, the circuit court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such state court, it shall cause the same to be remanded thereto.'

These three provisions are cogent evidence of the purpose of the legislative department to exact careful scrutiny on the part of the circuit courts of the grounds upon which litigants seek the determination of their controversies in those courts. It is not material now to inquire into the distinction which may exist in some of these provisions between those things which are of the essence of jurisdiction and those which relate to the method of procedure, for in the case with which we have to deal the question was seasonably presented, and we are required to consider the correctness of the method pursued. The method of procedure to obtain the removal of the suit on the ground of prejudice or local influence is not...