Myers v. Swann

• Decision Date: 23 April 1883
• Citation: 2 S.Ct. 685,107 U.S. 546,27 L.Ed. 583
• Parties: MYERS and others v. SWANN and others
• Court: U.S. Supreme Court

107 U.S. 546

2 S.Ct. 685

27 L.Ed. 583

MYERS and others v. SWANN and others.

April 23, 1883.

T. T. Crittenden and F. H. Mackey, for plaintiffs in error.

S. F. Phillips, for defendants in error.

WAITE, C. J.

This is a writ of error brought under the act of March 3, 1875, c. 137, to reverse an order of the circuit court remanding a cause removed from a state court under the third subdivision of section 639 of the Revised Statutes, on account of 'prejudice and local influence.' At the time the application for removal was made in the state court, the suit was being prosecuted by citizens of North Carolina, as plaintiffs, against George Myers, then in life, a citizen of New York, and certain other persons, all citizens of North Carolina, to recover the possession of a lot in Wilmington, occupied by Myers, and to obtain a conveyance of the legal title held by the other defendants. The suit was originally begun on the nineteenth of May, 1873, against Myers alone, to recover the possession and damages for the detention, but on the twenty-ninth of May, 1877, an amended complaint was filed, not changing the action as against Myers, but bringing in the other defendants, who, it was alleged, held the legal title, and asking for a conveyance from them. Myers alone answered the amended complaint on the eighth of September, 1877, and on the twelfth of March, 1878, petitioned for a removal, filing an affidavit to the effect that he had reason to believe, and did believe, that from prejudice or local influence he would not be able to obtain justice in the state court. The state court of original jurisdiction refused to allow a removal, but on appeal to the supreme court this was overruled, on the ground that the new defendants were merely nominal parties as trustees, and thereupon the cause was docketed in the circuit court of the United States on the eighteenth of November, 1878. In November, 1879, the circuit court, 'being of opinion that the action in its present form' could not be maintained in that court, remanded the suit to the state court, and from that order this writ of error was taken.

As the suit was pending in the state court against Myers from 1873 to 1878, his application for removal was too late to secure the benefit of the separate-controversy provision in the act of 1875. Such an application should have been made at or before the term at which the cause could be first tried; or, rather, as this suit was begun before the act of 1875 was passed, it should have been at or before the term at which the cause could be first tried after that act went into operation....