Golightly v. Massachusetts Bonding & Insurance Co.
| Decision Date | 25 January 1924 |
| Docket Number | 3426. |
| Citation | 295 F. 153 |
| Parties | GOLIGHTLY v. MASSACHUSETTS BONDING & INS. CO. |
| Court | U.S. District Court — Northern District of Texas |
W. A Hudson and John White, both of Dallas, Tex., for the motion.
W. L Moore and D. A. Frank, both of Dallas, Tex., opposed.
Section 28 of the Judicial Code (Comp. St. Sec. 1010) provides:
'Where a suit is now pending, or may hereafter be brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the district court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said district court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause.'
This provision, and its predecessors in former judiciary acts, have been construed at various times. Reeves v. Corning et al. (C.C.) 51 F. 774; P. Schwenk & Co., v. Strang et al., 59 F. 209, 8 C.C.A. 92; City v. Wright (C.C.) 84 F. 836; Carson & Rand Lumber Co. v. Holtzclaw (C.C.) 39 F. 578; Malone v. Richmond & D.R. Co. (C.C.) 35 F. 625; Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. 261, 22 S.W. 626; Vadner v. Vadner (D.C.) 259 F. 614; Pennsylvania v. Bender, 148 U.S. 255, 13 Sup.Ct. 591, 37 L.Ed. 441; Tod v. Cleveland, etc., 65 F. 145, 12 C.C.A. 521; Boatmen, etc., v. Fritzlen, 135 F. 650, 68 C.C.A. 288; Cochran v. Montgomery, 199 U.S. 260, 26 Sup.Ct. 58, 50 L.Ed. 182, 4 Ann.Cas. 451; Bellaire v. Baltimore & O.R. Co., 146 U.S. 117, 13 Sup.Ct. 16, 36 L.Ed. 910; Ex parte Pennsylvania, 137 U.S. 451, 11 Sup.Ct. 141, 34 L.Ed. 738; Fisk v. Henarie, 142 U.S. 459, 12 Sup.Ct. 207, 35 L.Ed. 1080; Southworth v. Reid et al. (C.C.) 36 F. 451; Huskins v. Cinn., etc. (C.C.) 37 F. 504, 3 L.R.A. 545; Parker v. Vanderbilt (C.C.) 136 F. 250; City of Detroit v. Detroit City Ry. Co. (C.C.) 54 F. 10.
The 'justice' which the defendant must be prevented from obtaining in the state court to entitle him to a removal is certainly not a judgment or decree in his favor. It does not mean any particular result in the case, but it does mean the 'influences' which will operate upon the tribunal during the time of its decision. In other words, every defendant, as well as every plaintiff, for that matter, has the right to obtain a hearing and a decision by a court wholly free from and not exposed to the effect of prejudice or local influence.
If the United States court is legally, not merely morally, satisfied of the truth of the allegation that, from prejudice or local influence, the defendant will not be able to obtain that sort of justice in the state court, then removal will be ordered.
Such legal satisfaction requires some proof suitable to the nature of the case. This proof may be made by affidavits; by oral oath; setting forth a statement of facts which evince, to the mind of the court, the truth of the allegation. City of Detroit v. Detroit (C.C.) 54 F. 1; Ex parte Pennsylvania, 137 U.S. 451, 11 Sup.Ct. 141, 34 L.Ed. 738; City v. Wright (C.C.) 84 F. 836.
No defendant can take advantage of this provision unless the suit could originally have been brought in the United States court. No defendant can remove under this provision unless the case pends against him in some state other than his residence. A sufficient bond must be presented together with the petition and the proof. Such application must be made to the federal court 'at any time before the trial thereof.'
After this ex parte hearing and after the order of removal has issued, the plaintiff may come into the federal court, seasonably, and move to remand.
The provisions of the Texas state statute which map the method for the changing of the venue of a civil case do not give such change as a matter of right; it is left to the discretion and determination of the court. Hence, under the authorities, proof of the existence of a similar prejudice and local influence in the counties to which the cause might be removed out of the state court need not be made.
All of the above are maintained and reasoned in the authorities cited.
In this case the petition for the removal, and the proof in support thereof, was presented on the 4th day of January, 1924. Application to remand is now made and a tender of oral testimony is made by the plaintiff to combat the allegation of 'prejudice, and local influence,' made by the defendant.
It appears, however, that this cause was instituted in the state court about two years ago; under the state statute it was an appearance case many months and more than a year ago. The ordinary meaning of the phrase 'at any time before the trial thereof,' would seem to warrant us in saying that the application to remove has been seasonably made, as there has been no trial of the cause in the state court. The Supreme Court of the United States, in Fisk v. Henarie, 142 U.S. 459, 12 Sup.Ct. 207, 35 L.Ed. 1080, in discussing this identical phrase and the phrases in the statutes which preceded the 1911 Judicial Code, in which the present phrase occurs, held that the words, 'at any time before the trial thereof,' mean and require that the petition to remove shall be filed before or at the term at which the cause could first be tried, and before the trial thereof. I am not sure that the word 'could' means 'might.' That is, I am not sure that the Supreme Court meant to say that such a petition could not be filed after the passing of the term at which the cause 'might' have been tried. If the court did mean that, then the only difference between a removal, under this feature of the statute, and a removal merely because of the diversity of citizenship, is that, when local influence, or prejudice, exists, the petition may be filed any time before trial, provided it is filed during the first term at which a trial might have been had, while a petition to remove merely because of the diversity of citizenship, when no such local prejudice or influence exists, shall be filed on or before the return day.
If that is the rule, then this motion to remand should be granted because many terms have passed since this suit was instituted and many terms had passed before the application to remove was presented.
There is a very strong reason, however, for not taking such view. The section contemplates the removal of a suit that had been pending at the time of the passing of the section because it declares 'where a suit is now pending. ' Then, too, after a suit shall have been instituted, and before its trial, a local prejudice or influence may develop which would make a fair and impartial trial, within the meaning of the law, improbable or doubtful. Certainly when a condition of that sort arises there should be some remedy. That the state itself may furnish a change of venue remedy will be no ground for the denial of the federal remedy. If this construction is to prevail, then the statute is practically useless. It remedies no wrong.
In Parker v. Vanderbilt (C.C.) 136 F. 246, Circuit Judge Prichard writes that, in his opinion, the Supreme Court did not mean that the removal petition should be filed at the term at which the case first stood for trial. His view is supported by an interesting discussion by Judge Taft in City of Detroit v. Detroit City Ry. Company (C.C.) 54 F. 10.
I have not discovered, nor has there been presented to me, any subsequent ruling by the Supreme Court expressing a view which would compel me...
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