Golightly v. Massachusetts Bonding & Insurance Co., 3426.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
Citation295 F. 153
Docket Number3426.
Decision Date25 January 1924

295 F. 153


No. 3426.

United States District Court, N.D. Texas, Dallas Division.

January 25, 1924

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.

ATWELL, District Judge.

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 [295 F. 154] 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 [295 F. 155] 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...

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