Manley v. Olney

• Decision Date: 23 November 1887
• Citation: 32 F. 708
• Parties: MANLEY v. OLNEY.
• Court: U.S. District Court — Western District of Michigan

32 F. 708

MANLEY v. OLNEY.

United States Circuit Court, W.D. Michigan, Southern Division.

November 23, 1887

George M. Buck, (Charles S. May, of counsel,) for plaintiff.

Spafford Tryon, (George S. Clapp, of counsel,) for defendant.

SEVERENS J.

This is a motion to remand a case which has been brought here by removal from the circuit court for Van Buren county. The suit was commenced by summons, which was served on the defendant on the twenty-eighth day of December, 1886. He appeared in that court January 7, 1887. Declaration was filed January 22 1887, and the defendant pleaded thereto on the nineteenth day of February, 1887. The petition for removal was filed May 2 1887.

The motion involves the construction of the act of March 3, 1887 in reference to the jurisdiction of the circuit courts of the United States, and the application of that act to cases then pending and in which plea had been already filed, but which were at that time removable under the previous act of 1875. The substantial ground taken by the plaintiff in support of the present motion is that the law of 1887 repealed the law of 1875 in regard to the right of removal, and altogether supplanted it, and inasmuch as the law of 1887 did not give the right of removal, because the plea was already in, such right was gone; and that the result was to cut off the right of removal as to all cases in that situation, when that right rested on the sole ground of diverse citizenship. And anomalous as such a consequence is, I cannot see any escape from it. Section 6 of the act of 1887, in plain terms repeals the act of 1875, and then goes on by proviso to make a saving of all cases pending in the United States courts, whether brought there by removal or originally instituted in those courts. This express repeal, taken in connection with the saving clause, seems to me to exclude the right to remove into this court any case upon the footing of the act of 1875, after the passage of the act of 1887, and that thereafter removals could only be had upon the conditions of the later act, the third section of which provides that the petition must be filed at the time of pleading. It is the settled rule that if a law conferring jurisdiction is repealed without any saving of pending cases, jurisdiction over such cases is gone. Insurance Co. v. Ritchie, 5 Wall. 541; Ex parte McCardle, 7 Wall. 514; U.S. v. Tynen, 11 Wall. 88; Railroad Co. v. Grant, 98 U.S. 398. And this rule applies with increased force where there is an express saving of some cases which would otherwise be swept away by the repeal.

It is contended that the act of 1887 should not be construed retrospectively so as to cut off rights which had already accrued; and the familiar rule of statutory construction in that regard is cited and relied upon. Murray v Gibson, 15 How. 421; Dash v. Van Kleeck, 7 Johns. 499. The rule is a good one when there is opportunity for its application. Under the act of 1875 it was held that pending cases were saved where the first term at which the trial could be had meant the first term after the passage of the act at which trial could be had, and it could apply to pending cases...