Fitzgerald v. Allman

• Decision Date: 31 January 1880
• Citation: 82 N.C. 492
• Court: North Carolina Supreme Court
• Parties: J. M. FITZGERALD and others v. ISAAC ALLMAN and others.

82 N.C. 492

J. M. FITZGERALD and others

v.ISAAC ALLMAN and others.

Supreme Court of North Carolina.

January Term, 1880.

PETITION for Removal of a Cause heard at December Special Term, 1879, of HAYWOOD Superior Court, before Graves, J.

The action is brought by the plaintiffs, heirs-at-law of John A. B. Fitzgerald, to set aside and annul a deed conveying the lands described in the complaint and executed by himself and wife, to the defendants, upon the allegation that the intestate was of unsound mind and incompetent to make the deed. The defendants, who are colored persons, controvert the allegation and assert his legal capacity to act. At the special term of Haywood superior court, held in December, 1879, the defendants applied by petition, verified by oath, for a stay of the proceeding, in order to its removal to the circuit court of the United States for the southern district of North Carolina, for the causes specified therein, and say that they cannot enforce in the judicial tribunals of the state their rights secured to them by law in said suit, on account of the fact “that the plaintiffs are white persons, and in whose favor there is great partiality existing in this locality, and the defendants, your petitioners, are persons of color against whom there is existing in the locality a great prejudice on account of their color.” Upon this affidavit it was “ordered that all further proceedings in the cause cease in this court, and that the cause be removed to the circuit court of the United States” as aforesaid. From this ruling the plaintiffs appeal.

Messrs. G. S. Ferguson, A. W. Haywood and J. L. Henry, for plaintiffs .

Messrs. J. M. Gudger and Battle & Mordecai, for defendants .

SMITH, C. J., after stating the case.

The act of congress by which the order is supposed to be sustained, is in these words: “When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the parts of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, * * * such suit or prosecution may, upon the petition of such defendant, filed in the said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next circuit court to be held in the district where it is pending.” Rev. St. U. S., § 641.

In State v. Dunlap, 65 N. C., 491, decided at June Term, 1871, the statute is construed to extend to, and “include cases where, by reason of prejudice in the community, a fair trial cannot be had in the state courts;” and this construction, followed in the court below, embraces that before us. Since this decision, the clause in the constitution which this act is intended to enforce has been interpreted and explained by the supreme court of the United States, more in consonance with its language and purposes, and it has been confined to trials in states whose laws discriminate adversely against a class of citizens to which the persons asking for the removal belong. In the Slaughter House cases, decided in 1872, (16 Wall., 36) the force and scope of this amendment of the constitution, and the statute passed under its authority, were carefully and elaborately considered, and the question as to its true meaning put at rest. Mr. Justice MILLER, speaking for the court,...