P. Schwenk & Co. v. Strang, 313.

• Citation: 59 F. 209
• Decision Date: 04 December 1893
• Docket Number: 313.
• Parties: P. SCHWENK & CO. v. STRANG et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

59 F. 209

P. SCHWENK & CO. v. STRANG et al.

No. 313.

United States Court of Appeals, Eighth Circuit.

December 4, 1893

H. C Brome and R. A. Jones, for appellant.

Before CALDWELL and SANBORN, Circuit Judges.

CALDWELL Circuit Judge.

This action was commenced in the district court of Madison county Neb. The defendant the Shickle, Harrison & Howard Iron Company filed its petition in the circuit court of the United States for the district of Nebraska for the removal of the suit to that court on the ground of prejudice and local influence. The petition and affidavit for removal make only this averment in relation to the alleged prejudice and local influence:

'Affiant further says that on account of prejudice and local influence the said petitioner will not be able to obtain justice in the said district court of Madison county in the state of Nebraska, or in any of the said courts in the state of Nebraska to which, on account of local influence or prejudice, the said defendant may, under the laws of the state of Nebraska, have a right to remove said cause, and that if said cause be tried in the district court of said Madison county, Neb., or in any other district court of the said state of Nebraska, said petitioner is liable to suffer pecuniary loss and damage on account of such prejudice and local influence.'

Upon this showing, and without notice to the plaintiff or the other defendants, the circuit court entered an order removing the cause into that court. Afterwards, the plaintiff appeared in the circuit court, and filed affidavits denying that there was any prejudice or local influence against the defendant and moved to remand the cause to the state court, which motion was overruled.

The question presented for our consideration is whether the showing made in the affidavit filed by the defendant warranted the circuit court in removing the cause from the state court. The affidavit states only a conclusion. Not a fact is stated, from which prejudice or local influence could be inferred. It is not shown that any officer or agent of the defendant was ever in the county or state, or that a single citizen of the county or state ever heard of the existence of the company, or that the plaintiff is popular or influential in the county, or favorably known, or known at all, to the people of the county. In a word, the affidavit does not contain a hint of any fact or circumstance from which any court could say that it had been made to appear that, from prejudice or local influence, the defendant would not be able to obtain justice in the state court. The grounds upon which the affiant arrived at the conclusion to which he swears are not disclosed. His residence is not disclosed. It does not appear that he ever was in Madison county, or knows a single citizen of the county, or knows anything about the sentiments and feelings of the people of the county towards the plaintiff or the defendant. If he had stated the facts upon which he founded his conclusions, the court could then have determined whether his deductions were sound.

It not unfrequently occurs, as every judge who has had much experience on the circuit knows, that affidavits like the one under consideration are filed when it is perfectly obvious that the only prejudice that has any existence in fact is the prejudice of the affiant against the people of the county, or whom he knows nothing, and whose impartiality and fairness he impeaches without the slightest foundation of fact. Instances are not wanting where such affidavits had no better foundation than an earnest desire on the part of the defendant to harass and delay the plaintiff in his suit. It was the knowledge of these facts that induced congress to change the law on this subject. Under the statute in force prior to the present act, the removal of a cause from the state to the federal court upon the ground of prejudice or local influence was affected by simply filing an affidavit in the state court stating that the party 'has reason to believe, and does believe, that from prejudice or local influence he will not...