Parker v. Vanderbilt

• Decision Date: 27 March 1905
• Citation: 136 F. 246
• Parties: PARKER v. VANDERBILT et al.
• Court: U.S. Court of Appeals — Fourth Circuit

136 F. 246

PARKER v. VANDERBILT et al.

United States Circuit Court, W.D. North Carolina.

March 27, 1905

H. B Stevens, Zebulon Weaver, and F. A. Sondley, for plaintiff.

Merrimon & Merrimon, for defendants.

PRITCHARD Circuit Judge.

This case was removed from the superior court of Buncombe county to the Circuit Court of the United States, on account of prejudice and local influence, on September 19, 1904. The plaintiff made a motion to remand same to the state court on the 11th day of March, 1904, upon the ground that the defendant Brantly was at the time of the institution of the suit a resident of North Carolina; also that the petition was not properly verified, and did not contain facts sufficient to justify a removal, and for other reasons which are fully discussed in the opinion.

It is contended by counsel for plaintiff that the application for removal from the state court was not made in apt time. The statute under which this case was removed provides that the case may be removed at any time before trial. This must be construed to mean that the petition should be filed before the machinery which is provided by the state court for the trial of causes is put in motion. Any other construction would do violence to the plain language of the act. It was clearly the intention of Congress that a nonresident defendant should be given the right to file his petition for removal at any time before the first trial of the case in the state court.

It is further contended by the plaintiff that it was held by the Supreme Court in the case of Fisk v. Henarie, 142 U.S. 459, 12 Sup.Ct. 207, 35 L.Ed. 1080, that the language 'at any time before the trial' of the suit means that the petition should be filed at or before the term at which the case could first be tried, and before the trial thereof. There is nothing in that case which is in conflict with the views the court entertains in regard to the construction that should be given the words 'at any time before the trial thereof.'

In the case of City of Detroit v. Detroit City Ry. Co (C.C.) 54 F. 10, Judge Taft, in discussing this question, among other things, said:

'In our opinion, however, the decision of the Supreme Court in Fisk v. Henarie is not to be given the meaning contended for by counsel for the complainant. In that case the cause was removed from a state court to a federal court under the act of 1888 after it had been three times tried in the state court. The contention on the part of the removing defendants was that the words in this act, 'at any time before the trial thereof,' used in regard to removal on the ground of prejudice or local influence, were, in effect, 'at any time before the final trial thereof,' and were to be given the same meaning as the words of the act of July 27, 1866, and the act of March 2 1867, 'at any time before the trial or final hearing of the suit,' under which language it had often been ruled that it was not too late to apply for a removal after trials which had been set aside by the trial court or by an appellate court.

The chief justice, in giving the opinion of the court, refers to the omission of the word 'final' in the acts of 1887 and 1888, and points out that in this respect the language is like that of the act of 1875, in which the words are 'before or at the term at which said cause could be first tried and before the trial thereof.' The chief justice says: 'This has been construed to mean the first term at which the cause is in law triable-- the fist term at which the cause would stand for trial if the parties had taken the usual steps as to pleadings and other preparations; and it has also been decided that there cannot be a removal after a hearing on a demurrer to the complaint because it does not state facts sufficient to constitute a cause of action.' After quoting the language of the act of 1887, carried into the act of 1888, the chief justice continues: 'In view of the repeated decisions of this court in exposition of the acts of 1866 and 1867 and 1875, it is not to be doubted that Congress, recognizing the interpretation placed on the word 'final' in the connection in which it was used in the prior acts, and the settled construction of the act of 1875, deliberately changed the language 'at any time before the final hearing or trial of the suit,' or 'at any time before the trial or final hearing of the cause,' to read 'at any time before the trial thereof,' as in the act of 1875, which required the petition to be filed before or at the term at which the cause could be first tried, and before the trial thereof. The attempt was manifest to restrain the volume of litigation pouring into the federal courts, and return to the standard of the judiciary act, and to effect this in part by resorting to the judicial interpretation. This is more obvious in view of the fact that the act of March 3, 1887, was evidently intended to restrain the jurisdiction of the circuit court, as we have heretofore held.' Two members of the court-- Mr. Justice Field and Mr. Justice Harlan--dissented. In their opinion, the language 'any time before the trial' meant the same as in the act of 1866 and 1867; that is, 'at any time before the final trial.' The question at issue in the case, therefore, was whether the trial referred to in the act was a final trial or a first trial. A majority of the court held that, because the words 'before the trial thereof' had been used in the act of 1875 in connection with words which left no doubt that there they meant the first trial, therefore the same words in the act of 1887 must be taken to have the same meaning. We do not understand from the opinion, however, that the majority of the court intended to incorporate bodily into the acts of 1887 and 1888, from the act of 1875, the words 'before or at the term at which said cause could be first tried.' It is not apparent on what grounds this could be done. The act of 1875 fixed the time for removal, not only before the first actual trial, but also before or within the first term when a trial was possible. The Supreme Court holds that the words 'before the trial thereof,' in the act of 1887, were taken from the act of 1875. This being the case, the omission in the act of 1887 of the words limiting the period of removal so that before or within the term of possible trial which appear in the act of 1875 would seem to clearly indicate the congressional intention not to impose such a limitation in the subsequent act. The case before the Supreme Court did not require the construction contended for, and, for the reasons stated, we do not feel authorized to attribute such a view to that court until some further expression from it on the subject. The words 'at any time before the trial' should be given their ordinary meaning, i.e., 'at any time before the first trial thereof'; and up to the time of that first trial, whether that occur at one term or another, the right of removal under the local prejudice clause remains. It follows that this cause was removed in time.'

It was manifestly the intention of Congress to extend to a defendant who was a nonresident the right to have his case removed to the federal court at any time before the trial thereof, provided that it should be made to appear that he could not obtain justice in the state court on account of prejudice or local influence. To say that this clause of the act means that he should only have the right to file his petition at the term at which the case first stood for trial would defeat the very purpose for which the act in question was passed.

It is insisted that, although diversity of citizenship is alleged in the petition, there is no allegation to the effect that the defendant is a nonresident. The petition states that the defendant was at the time of the commencement of this suit, and still is, a citizen of New York, and of no other state. The statement that defendant is a citizen of New York, and of no other state, is sufficient to show that he is a nonresident of North Carolina. In Martin v. B. & O.R. Co., 151 U.S. 676, 14 Sup.Ct. 534, 38 L.Ed. 311, it is said, 'in order to be a nonresident within the meaning of this statute, the defendant must be a citizen of another state.'

The plaintiff further contends that, inasmuch as the defendant Brantly is admitted to be a resident and citizen of North Carolina, this suit is not of such a character as to give his codefendant the right to remove it on the ground of prejudice and local influence. The statute provides...