Neale v. Foster

• Decision Date: 15 June 1887
• Parties: NEALE v. FOSTER and others.
• Court: U.S. District Court — District of Oregon

31 F. 53

NEALE v. FOSTER and others.

United States Circuit Court, D. Oregon.

June 15, 1887

Syllabus by the Court

The plaintiff being the owner and assignee of a non-negotiable contract, namely, two judgments for money, brought suit in the state court to set aside certain alleged fraudulent conveyances by the judgment debtor, and to subject the lands described therein to the satisfaction of said judgments, and then caused the suit to be removed to this court, stating in his petition therefor that the plaintiff is a citizen of Illinois, and the defendants citizens of Oregon, and that on account of prejudice and local influence he could not obtain justice in the state court; in support of which latter statement he filed an affidavit, as required by subdivision 3 of section 639 of the Revised Statutes. On April 29th, and after the case had been put at issue by a replication to the defendant's answer, and the same had been referred to the master to take the testimony, and find the facts and conclusions of law arising thereon, and after the testimony was closed, and the case was awaiting the convenience of the master for final argument before him, the defendants applied, under section 2 of the act of 1887, (24 St. 553,) to examine into the truth of said affidavit alleging that the same is untrue; on which issue affidavits were filed by the parties. Held, (1) that the proceeding authorized by the act of 1887, whereby this court is called upon to pass on the fitness of a state judge to try a particular case, is indelicate and inexpedient; (2) the application is too late, not having been made before the trial, or hearing commenced before the master; and (3) the cause was removable on the ground of the diverse citizenship of the parties, irrespective of the question of prejudice and local influence, and therefore the application to remand is denied, without passing on the same.

C. E S. Wood, for plaintiff.

Earl C Bronaugh, for defendants.

DEADY J.

This suit was commenced in the circuit court of the state for Linn county on July 1, 1886; and on July 6th was removed, on the petition of the plaintiff, to this court. It appears from the complaint that the suit is brought to set aside certain conveyances of real property situate in said county, and made by the defendant Foster, when in failing circumstances, to the defendants Pearce and John A. and William Crawford, of said county, and subject the same to the payment of two certain judgments, equal in value to $15,966, with interest from March 8, 1886, of which the plaintiff is, for a valuable consideration, the assignee of certain citizens of Oregon.

The petition for removal states that the plaintiff is a citizen and resident of Illinois, and the defendants are citizens of Oregon, and that the controversy in said suit is between citizens of different states; that the plaintiff also desires to remove said suit under subdivision 3 of section 639 of the Revised Statutes, and has filed the affidavit required for that purpose. The affidavit is made by the plaintiff's attorney, and states that the affiant and the plaintiff 'have reason to believe, and do believe, that, from prejudice and local influence,' the latter 'will not be able to obtain justice in said state court.'

On August 21st the defendants answered, and on September 10th the cause was put at issue by the filing of a replication thereto; and on October 7th the case was referred to a master to take the testimony therein, and report his findings of fact and conclusions of law thereon. The testimony has long been closed, and the case is awaiting the convenience of the master for final argument before him.

On April 29th the defendants made an application under section 2 of the act of March 3, 1887, (24 St. § 553,) to examine into the truth and grounds of said affidavit, alleging therein that the same was untrue, and in support of such allegation filed the affidavits of the sheriff and clerk of the county, and the defendants Foster, and John A. and William Crawford. The plaintiff having a day to reply to the same, filed the affidavits of the defendants Baltimore and Goltra, who have unsatisfied judgments against Foster, and of three other respectable citizens of the county. The affidavits for the defendants are simply to the effect that the plaintiff is unknown in the county, and the affiants are not aware of any prejudice against him, either by the people or the judges of the courts. The affiants for the plaintiff state that the judge of the circuit court of Linn county is regarded as generally prejudiced in favor of the principal defendant, John A. Crawford, and that the plaintiff is not likely to have a fair trial in that court against said defendant; and also that one of the three judges of the supreme court of the state is a resident of said county, and acted as the attorney and adviser of Foster and Crawford in the preparation and execution of the...