Fisk v. Henarie

• Decision Date: 11 June 1888
• Citation: 35 F. 230
• Parties: FISK v. HENARIE et al.
• Court: U.S. District Court — District of Oregon

35 F. 230

FISK v. HENARIE et al.

United States Circuit Court, D. Oregon.

June 11, 1888

(Syllabus by the Court.)

The act of 1887 (24 St. 552) does not repeal subdivision 3, Sec. 639 Rev. St., (act of 1867,) prescribing the procedure or method of procuring a removal of a cause on account of prejudice or local influence; and an affidavit by the party seeking such removal, to the effect that he believes he will not obtain justice in the state court on account of prejudice and local influence; and an affidavit by the party seeking such removal, to the effect that he believes he will not obtain justice in the state court on account of prejudice and local influence, is sufficient to authorize the same.¹

George H. Williams and George H. Durham, for plaintiff.

James K. Kelly and John M. Gearin, for defendants.

DEADY J.

This action was removed to this court on the petition and affidavit of certain of the defendants, who are citizens of California, on the ground of prejudice and local influence.

A motion to remand was denied, (32 F. 417,) and the cause was tried here with a jury who, on December 17, 1887, gave a verdict for the defendants.

The plaintiff moves for a new trial, and submits the motion on the single ground that the court erred in refusing to remand the case to the state court,-- the other grounds of the motion being expressly waived.

Strictly speaking, this is not an error occurring at the trial, for which this motion is the proper remedy. The case may be taken to the supreme court on error, and the ruling of the court in this respect reviewed, and, if erroneous, corrected.

But counsel ask the court to reconsider the question in the light of Mr. Justice BREWER'S subsequent ruling in Short v Railway Co., 33 F. 114, and I am quite willing to do so.

On the argument of the present motion but one point was made: that it did not 'appear' to the court from the petition and the affidavit for removal, as required by the act of 1887, (24 St. 552,) that the defendants will not, on account of prejudice or local influence, be able to obtain justice in the state court, because the probatory circumstances, on which the defendants based their statement to that effect were not set forth in the affidavit.

In the opinion of this court on the motion to remand it was said that the act of 1887 does not provide how the fact of prejudice or local influence 'shall be made to appear' to the court. This class of cases is expressly excepted from the operation of section 3 of the act prescribing the mode of removal thereunder generally. It follows that so much of section 639 of the Revised Statutes as relates to the method of removal on account of prejudice or local influence, and the proof thereof, is not in conflict with the act of 1887, and is therefore still in force, and applicable to such removal. * * * It is sufficient that they (the defendants) have made oath that they so believe, (that from prejudice and local influence they will not be able to obtain justice in the state courts,) without setting forth the facts or circumstances on which such belief is founded.

It is admitted in Short v. Railway Co., that the act of 1867 (section 639, subd. 3, Rev. St.) 'is not in terms repealed' by the act of 1887. But it is contended the latter act 'covers the same ground, and is obviously intended by the legislature to be its expressed will upon the whole subject involved therein,' and therefore, although there may be some provisions in the earlier not absolutely inconsistent with those of the later act, yet the whole of the earlier act is repealed.

But in my judgment this deduction is founded on a misapprehension of the intention of the legislature as manifested in the act of 1887.

The plain purpose of the act, so far as the removal of causes on the ground of prejudice or local influence is concerned, is to provide who may remove a suit for such cause, and within what time, and not to prescribe the procedure or manner of taking the removal.

For instance, by the act of 1867 a suit could be removed on the petition of either party thereto, if he was not a citizen of the state in which it was brought, while the act of 1887 restricts the right to the defendant. The act of 1867 allowed a removal only in a case of 'a suit' between citizens of different states, but the act of 1887 gives the right of removal to 'any' defendant in a suit who is a citizen of a state other than that in which the same is brought, whenever there is 'a controversy' therein between himself and a citizen of any other state. Fisk v. Henarie, 32 F. 422. The act of 1867 permitted the removal to be made 'at any time before the trial or final hearing of the suit,' while the act of 1887 limits it to 'any time before the trial thereof.'

Section 3 of the act of 1887 expressly provides a method of removal in all cases within its purview,...