Hall v. Chattanooga Agricultural Works

• Decision Date: 22 December 1891
• Citation: 48 F. 599
• Parties: HALL et al. v. CHATTANOOGA AGRICULTURAL WORKS et al.
• Court: U.S. District Court — Eastern District of Tennessee

48 F. 599

HALL et al. v. CHATTANOOGA AGRICULTURAL WORKS et al.

United States Circuit Court, E.D. Tennessee, Southern Division.

December 22, 1891

Andrews & Barton, for complainants.

Clark &amp Brown, for defendants.

KEY, J.

The petition for removal in this case seeks to bring the cause from the state court into this court upon two grounds: That is, because there is a separable controversy between the petitioners and the other parties to the suit; and because there exists such prejudice or local influence that petitioners will not be able to obtain justice in the state court, or in any other court of the state to which this cause could be removed. It appears that application has been made in the state court for the removal of the cause because there is a separable controversy between the parties, but as yet there has been no action of the state court upon the application, for want of a session of the court. In cases which are sought to be removed, except those in which the application is predicated upon local influence and prejudice the petitions must be filed in the state court. The acts of congress of March 3, 1887, and August 13, 1888, in section 3 of the act of 1875, as amended by these acts, provide that except where the application for removal is based upon local influence and prejudice, the party desiring to remove the cause may make and file a petition in such suit in the state court at the time or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to plead or answer to the declaration or complaint of the plaintiff for the removal of such suit; and shall make and file therewith a bond, with good and sufficient surety, for his entering in the circuit court, and filing, on the first day of its then next session a copy of the record. It shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit; and, the said copy being entered as aforesaid in the circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court.

It appears from the record that, since the adjournment of the last term of the state court, a petition for removal and a bond have been prepared and filed; but there has been no session of the court since, so that the petition and bond could be presented to the state court as contemplated by the statute. It would be premature, and a want of comity, for this court now to say that the cause had been removed before the state court had opportunity to consider and pass upon the question the law submits to it. Moreover, the cause is not removed until the petition and bond shall be presented to the state court for acceptance. Then, and not until then, is the state court required to determine whether it will proceed further or not. If the petition and bond conform to law, the cause is removed; if not, it is not removed. The decisions relied upon by petitioners' attorney were made in cases in which petitions and bonds had been presented to the state court complying with the requirements of the law, but in each case the state court declined to accept the petition and bond, and proceeded further, or attempted to do so, in the suit. When the state court considers the application for removal so far as to accept or reject petition and bond, if the application be such as authorizes a removal, the removal relates back to the date of the application; but it would be something remarkable for a party to go to the clerk in vacation, file his application for removal, and take his suit into this court, without presenting the matter to the state court at all, or giving it an opportunity to accept the petition and bond as the law prescribes.

The case mentioned by the petitioners' counsel, ^[1] decided here, did not involve the point now made. In that case the petition and bond for removal had been presented to and accepted by the state court. The authority of the state court over the cause had come to an end. The next term of this court thereafter had not been met, but a copy of the record had been filed, and it was moved to take a step preliminary to the preparation of the cause for trial. This was resisted upon the ground that the case could not come here until the first day of the next term. It was held that, though the petitioners were bound to file a copy of the record by the first day of the next term, still the cause was removed to this court when the state court accepted the petition and bond, and, whenever a copy of the record came into this court, this court's jurisdiction of it began.

The other ground of removal has its source in the act of March 3, 1887, corrected by the act of March 3, 1875, among other things, so as to make it read as follows:

'And 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 circuit 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 circuit 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 is peculiar and different in its features from the general character of the act in respect to removals. The application is made to the circuit court of the United States, and it removes the cause when it is made to appear that, from prejudice or local influence, justice cannot be obtained. The act of 1875 has nothing in regard to removals for such causes. Before the act of 1887, removals for prejudice and local influence rested upon section 639, subsec. 3, Rev. St. The applicant was to file his petition and affidavit in the state court, and he was only required to swear that he had reason to believe, and did believe, he could not obtain justice therein. The act of 1887 does not define how the matter shall be made to appear, but the supreme court has determined how it is to be done. In Ex parte Pennsylvania Co., 137 U.S. 457, 11 S.Ct. 143, it is said:

'Our opinion is that the circuit court must be 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 justice in the state court. Legal satisfaction requires some proof suitable to the nature of the case; at least, an affidavit of a credible person, and a statement of facts in such affidavit which sufficiently evince the truth of the allegation. The amount and manner of proof required in such case must be left to the discretion of the court itself. A perfunctory showing by a formal affidavit of mere belief will not be sufficient. If the petition for removal states the facts upon which the allegation is founded, and that petition be verified by an affidavit of a person or persons in whom the court has confidence, this may be regarded as prima facie proof sufficient to satisfy the conscience of the court. If more should be required by the court, more should be offered.'

In this case the court affirmed the action of the circuit court in remanding the cause, because the amount in controversy did not exceed $2,000. Upon the branch of the case as to which the opinion is quoted the court says:

'We are disposed to think that the proof of prejudice and local influence in this case was not such as the circuit court was bound to regard as satisfactory. * * * We do not say, as a matter of law, this affidavit was not sufficient, but only that the court was not bound to regard it so, and might have well regarded it as not sufficient.'

When we couple these expressions with one in the longer...