King v. Cornell

• Decision Date: 04 December 1882
• Citation: 1 S.Ct. 312,27 L.Ed. 60,106 U.S. 395
• Parties: KING v. CORNELL, Adm'r, etc., and others
• Court: U.S. Supreme Court

106 U.S. 395

1 S.Ct. 312

27 L.Ed. 60

KING v. CORNELL, Adm'r, etc., and others.

December 4, 1882.

Wm. M. Evarts, C. F. Southmayd, and Jos. H. Choate, for appellant.

Samuel H. Wilcox, for appellees.

WAITE, C. J.

This is a suit begun in the supreme court of New York by a citizen of that state against other citizens of the same state and Henry Seymour King, an alien, and a subject of the queen of the united kingdom of Great Britain and Ireland. King, the alien, claiming that there could be a final determination of the controversy, so far as it concerned him, without the presence of the other defendants as parties in the cause, filed in the state court his petition for a removal to the circuit court of the United States. In the circuit court a motion was made to remand the cause, which was granted, and, from an order to that effect, this appeal has been taken. It is conceded that the case was not removed under the second section of the act of March 3, 1875, c. 137, (1 Supp. Rev. St. 174), and that the jurisdiction of the circuit court rests solely on the second subdivision of section 639 of the Revised Statutes. It was said at the last term, in Hyde v. Ruble, 104 U.S. 407, that this subdivision was repealed by the act of 1785; but as that was a case between citizens of different states, and no question arose as to the right of alien defendants to a removal when there could be a final determination of the controversy, so far as it concerned them, without the presence of the other defendants, we have now considered the matter in that aspect. While repeals by implication are not favored, it is well settled that where two acts are not in all respects repugnant, if the later act covers the whole subject of the earlier, and embraces new provisions which plainly show that the last was intended as a substitute for the first, it will operate as a repeal. This subject was fully considered in U. S. v. Tynen, 11 Wall. 92, where the early authorities are cited and reviewed at considerable length. This rule, we think, is decisive of the present case. Section 639, in its first subdivision, provided for a removal by the defendant, where the suit is against an alien, or is by a citizen of the state in which the suit is brought against a citizen of another state. The petition for removal was to be filed by the defendant at the time of entering his appearance in the state court. This is a reproduction of the provisions of section 12 of the judiciary act of 1789, c. 20, (1 St. 79.)

The second subdivision related to suits against an alien and a citizen of the state in which the suit was brought, and to suits by citizens of such state against a citizen of the same and a citizen of another state. In such suits the defendant, who was an alien, or a citizen of another state, might have a removal, if the suit, so far as it related to him, was brought for the purpose of restraining or enjoining him, or was one where there could be a final determination of the controversy, so far as it concerned him, without the presence of the other defendants as parties in the cause. The petition for such a removal could be filed at any time before trial or final hearing, and the removal did not take away or prejudice the right of the plaintiff to proceed at the same time with the suit in the state court, as against the other defendants. This subdivision is a substantial reproduction of the act of July 27, 1866, c. 288, (14 St. 306.) The act of 1866 was amended by the act of March 2, 1867, c. 196, (14 St. 558,) so that in a suit between a citizen of the state in which the suit was brought and a citizen of another state, the citizen of the other state, whether plaintiff or defendant, might obtain a removal if he had reason to and did believe that from prejudice or local influence he would not be able to obtain justice in the state court. Here, too, the petition for removal could be filed at any time before trial or final hearing. This act of 1867 appears as the third subdivision of section 639.

The twelfth section of the act of 1789 remained in force, without amendment or material alteration, except by the acts of 1866 and 1867, until the revision of the statutes in 1873. Then the whole legislation was embodied in section 639 of the Revised Statutes, which was subdivided so as to present the different...