Hakes v. Burns
| Decision Date | 01 October 1889 |
| Parties | HAKES v. BURNS et al. |
| Court | U.S. District Court — District of Colorado |
Caldwell Yeaman, for plaintiff.
J. F Merryman, for defendant.
The question in this case is one of removal. The facts are these:
On June 29, 1888, John Davis, a merchant in Trinidad, Colo., made a bill of sale of his entire stock to the plaintiff, W. H Hakes. He was largely indebted to his creditors, the Trinidad National Bank and N. K. Fairbank & Company. Immediately thereafter, these creditors commenced suit, and levied attachments upon the stock; the bank levy being prior in time. Under these attachment writs, defendant W. T. Burns, as sheriff, seized the property, and held it until July 21 1888, when Hakes commenced a replevin suit. It is claimed that the Trinidad National Bank, the first attaching creditor, entered into a conspiracy with Hakes, with a view of appropriating all of the property to the satisfaction of its debt, leaving nothing for Fairbank & Company, although the property was sufficient to pay both claims. Burns, the sheriff, filed answer; and the case, as a suit between Hakes and Burns, went to trial in the latter part of December 1888, and a verdict was returned in favor of Hakes, which was set aside by the judge on the 4th day of January, 1889. On the 20th day of July, 1889, Fairbank & Company presented an intervening petition, stating that they were the real parties in interest; that the defendant Burns, sheriff, was only a nominal party; and asking to be substituted in lieu of defendant Burns. On this application, the court made an order allowing them to intervene, and be made party defendant with the sheriff, Burns, but refused to substitute. Immediately thereafter they filed a petition for removal to this court, on the ground of diverse citizenship and local prejudice. The state court declined to grant a removal; and, under the rule in force in this district, the clerk of this court will not file removal papers, in such a case, without an order of the judge. That order is now asked for.
I think the action of the state court correct, and that the petitioners are not entitled to a removal. So far as the matter of citizenship is concerned, the application is not in time. There had been one trial of the issues; and it is immaterial whether Burns, the sheriff, was a substantial, or only a nominal, party. It is claimed that he was only a nominal party; but, if so, he repres...
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Reeves v. Corning
...facie evidence of the fact, and throws the case into this court, leaving the other party to challenge its truth.' In the case of Hakes v. Burns, supra, the question was as to form and sufficiency of the affidavit, it being admitted that a removal, based on a sufficient affidavit, would be g......
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Crotts v. Southern Ry. Co.
...stating that affiant has reason to believe, and does believe, that such local prejudice exists, is not sufficient for this purpose. Hakes v. Burns, 40 F. 33; Short v. Railway Co., 34 F. 226. In this case Judge Brewer seemed to think that a positive affirmation of the existence of such local......