Hills v. Richmond & D.R. Co.

• Decision Date: 05 December 1887
• Citation: 33 F. 81
• Parties: HILLS v. RICHMOND & D.R. CO. [1]
• Court: U.S. District Court — Northern District of Georgia

33 F. 81

HILLS v. RICHMOND & D.R. CO. ^[1]

United States Circuit Court, N.D. Georgia.

December 5, 1887

N. J. &amp T. A. Hammond, for plaintiff.

Barrow & Thomas and Henry Jackson, for defendant.

NEWMAN J.

This case was removed to this court by the defendant from the superior court of Fulton county, under what is commonly known as the 'Local Prejudice Act.' The petition for removal, after stating that the defendant is a corporation organized under the laws of Virginia, and a citizen and resident of that state, and that the subject-matter of the suit exceeds the sum or value of $2,000, states that from prejudice and local influence it will not be able to obtain justice in the superior court of Fulton county, or in any other court in the state to which it might, under the laws of said state, have a right, on account of prejudice or local influence, to remove the same. With the petition was filed the following affidavit.

'I E. Berkley, being duly sworn, do say that I am the superintendent of that division of the Richmond & Danville Railroad Company which extends from the city of Charlotte, in the state of North Carolina, to the city of Atlanta, in the state of Georgia; that I am specially intrusted by the said railroad with the taking of such steps for the protection of its interests and rights in such cases as may be brought against it in either of the courts aforesaid, as my judgment may approve; that I am the highest officer in said company located in the state of Georgia, and having an office therein; that I have full authority to take such steps as may be necessary for the removal of causes brought in the state courts into the United States courts, where the facts authorize such removal, and my judgment is that the removal is necessary to the protection of property, interests, and rights of the company; that I have had long and large experience in the defense of cases brought against said railroad company in the courts of the state of Georgia, and in the superior court of the county of Fulton, in said state that from that experience I now make this affidavit that I believe that from prejudice and local influence the Richmond & Danville Railroad Company will not be able to obtain justice in said state court, or in any other state court to which the said railroad company may, under the laws of the said state of Georgia, have the right, on account of such prejudice or local influence, to remove said cause. Deponent further deposes that the facts stated in the foregoing petition for removal by the said Richmond & Danville Railroad Company are true.'

A bond was also filed, in accordance with the law. The order of the judge of the superior court was as follows:

'Upon considering the foregoing petition, bond, and affidavit, it is ordered that the bond be accepted and approved, and that this court proceed no further in this case. It is further ordered that the clerk of this court make out a complete transcript of the record of this case, and of all processes, pleadings, depositions, testimony, and other proceedings therein had, and furnish the same to the petitioner, the Richmond & Danville Railroad Company, or its counsel, in order that the same may be filed in the circuit court of the United States for the Northern district of Georgia.'

The record was filed in this court September 26, 1887, and a motion is now made to remand the case to the state court. The motion to remand is based on the ground that under the act of March 3, 1887, (24 St. at Large, 552,) it is now necessary even as to a defendant seeking a removal, to make a stronger case before this court to justify retaining jurisdiction than would have been necessary under the original act of 1867, (Rev. St. U.S. Sec. 639, subsec. 3.) In other words, that the language '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 a right, on account of such prejudice or local influence, to remove said case,' (Act March 3, 1887, Sec. 2,) was intended to change the law and...