Reeves v. Corning

• Decision Date: 19 August 1892
• Docket Number: 8,706.
• Citation: 51 F. 774
• Parties: REEVES v. CORNING et al.
• Court: United States Circuit Court, District of Indiana

51 F. 774

REEVES v. CORNING et al.

No. 8,706.

United States Circuit Court, D. Indiana.

August 19, 1892

Cooper & Cooper and Stansifer & Baker, for plaintiff.

Butler Snow & Butler, for defendants.

BAKER District Judge.

This action was commenced in the circuit court of Bartholomew county, Ind., on the 11th day of May, 1891. The state court ordered process against the defendant Irwin to be issued to the sheriff of Bartholomew county, returnable September 29 1891. Notice by publication was given to the defendant Corning, and was made returnable on the same day. On the 23d day of September, 1891, the defendant Corning, a citizen of the state of Illinois, filed his verified petition for the removal of the cause from the state court into this court, on the ground of prejudice and local influence, making it impossible for him to obtain justice in said court, or in any other state court into which said cause could be removed. The court, having examined the petition and its exhibits, and being fully advised in the premises, found that the defendant Corning was entitled to have the cause removed from the state court into this court for the reasons set out in his petition. The court thereupon adjudged that the cause be removed from said state court into this court, under and in pursuance of the provisions of an act of congress approved August 13, 1888.

The plaintiff has appeared specially, and moved the court to remand, on the ground that the order of removal was made on an ex parte hearing, without notice. It is argued that notice of the petition for removal is jurisdictional, and that the order, being made without notice, is void, and ought so to be held on the motion to remand. It is further insisted, if notice is not jurisdictional and the cause was rightly removed, the plaintiff ought to have leave to file affidavits controverting the facts on which the court awarded the removal. The plaintiff, therefore, appearing specially, has asked to be permitted to reopen the issue of prejudice and local influence, and to be allowed to file counter affidavits. The motion for leave to file counter affidavits is bottomed on the theory that this court had the authority to order a removal on an ex parte application, but that an order of removal so made, like an ex parte order of the court granting a restraining order, is intended to be in force temporarily, and to be continued in force only in case the court should be satisfied, after a hearing on notice, that its original order was just and proper.

The act of congress provides that-- 'Where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district at any time before the trial thereof, when it shall be made to appear to said circuit court that, from prejudice or local influence, he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right on account of such prejudice or local influence, to remove said cause. ' Act March 3, 1887, Sec. 2.

The statute does not, in terms or by necessary implication, require notice to the state court or to the adverse party of the application for removal on the ground of prejudice or local influence. Doubtless the better, as well as the safer, practice would ordinarily be for the court to decline to hear the application until proper notice of the hearing had been given. The question, however, is one of power or rightful authority, and not one relating to the property of methods of procedure. The only requirement of the statute is that the party asking for a removal 'shall make it appear to the court that, from prejudice or local influence, he cannot obtain justice in the state court. ' Questions of prejudice or local influence are matters largely resting in opinion, and are not generally susceptible of proof by evidence of facts, like issues in ordinary actions at law or suits in equity. The court must be legally, not merely morally, satisfied of the truth of the allegation that, from prejudice or local influence, the defendant will not be able to obtain justice in the state court. It has been well said that--

'Legal satisfaction requires some proof suitable to the nature of the case,--at least an affidavit of a credible person, and a statement of facts in such affidavit, which sufficiently evince the truth of the allegation. The amount and manner of proof required in each case must be left to the discretion of the court. A perfunctory showing by a formal affidavit of mere relief will not be sufficient. If the petition for removal states the facts upon which the allegation is founded, and that petition be verified by affidavit of a person or persons in whom the court has confidence, this may be regarded as prima facie proof sufficient to satisfy the conscience of the court. If more should be required by the court, more should be offered. ' In re Pennsylvania Co., 137 U.S. 457, 11 S.Ct. 143.

The facts and reasoning in this case are inconsistent with the claim that notice is jurisdictional. Since this case was decided, it has been held, on its authority, that notice was not necessary. In the case of Carpenter v. Railway Co., 47 F. 535, in which no notice of the original application had been given, the court, on a motion to remand, said that ordinarily one hearing and determination, though ex parte, will be held final, and overruled the motion to remand. In the case of Adelbert College v. Toledo, etc., Ry. Co., 47 F. 836, the court held, on an application to remove, on account of prejudice and local influence, that no notice was required. It is said:

'There is no requirement in the statute that the opposing side shall have notice of the application to remove, and be allowed an opportunity to be heard thereon. It would perhaps be the better practice to give the opposite party notice of the application to remove, before action thereon by the court; but that is a matter resting in the discretion of the court, and not a matter of right.'

It is claimed by counsel for the plaintiff that in the case of Malone v. Railway Co., 35 F. 625; of Short v. Railway Co., 34 F. 225; and of Hakes v. Burns, 40 F. 33,-- it has been held that notice was necessary. These cases were decided before the decision in Re Pennsylvania Co., supra, had been made; and consequently these cases, even if they held that notice was necessary, would not be controlling. These cases, however, do not hold that notice is necessary. In the case of Malone v. Railway Co.,

'Although such investigation or examination is not required by an express words of the statute to be had upon notice to the party against whom the removal is asked, such notice will best accomplish the object which congress had in view.'

The learned judge was of the opinion that notice was not necessary, but that it was the better practice to require it. In this opinion I fully concur.

In the case of Short v. Railway Co., supra, Mr. Justice BREWER, then circuit judge, said:

'Under the local prejudice clause, no petition need be filed; all that is required is that it shall be made to appear to the circuit court that, from prejudice or local influence, the party will not be able to obtain justice in such state court; and this showing may be made by affidavit, and, if this contains a specific averment, it is prima facie evidence of the fact, and throws the case into this court, leaving the other party to challenge its truth.'

In the case of Hakes v. Burns, supra, the question was as to the form and sufficiency of the affidavit, it being admitted that a removal, based on a sufficient affidavit, would be good without any notice. I am aware of no case in which it has been directly held that notice was jurisdictional. The question has been often raised whether it was not the safer and better method of procedure to require notice, and on this question there has been a general agreement of opinion in favor of notice,-- not as necessary, but to avoid an improvident removal.

The motion to remand proceeds in part on the theory that the plaintiff has a constitutional right to be heard, and hence a constitutional right to be notified of the application, and that, not having had any notice, the order of removal is wholly void. The conclusion would be unanswerable, if the premises were correct. It is too late, however, to claim any such constitutional right. The old removal act permitted a removal on an ex parte affidavit without notice. The cases which hold, either directly or by necessary implication, that the plaintiff has no constitutional right to notice of the application for removal on the ground of prejudice or local influence, are numerous. The following either directly decide the question, or at least bear strongly upon it: Fisk v. Henarie, 32 F. 417; Hills v. Railway Co., 33 F. 81; Dennison v. Brown, 38 F. 535; Amy v. Manning, Id. 536; Short v. Railway Co., 34 F. 225; Malone v.

Railway Co., 35 F. 625; Whelan v. Railroad Co., Id. 849; Huskins v. Railway Co., 37 F. 504 Lumber Co. v. Holtzclaw, 39 F. 578; Hakes v. Burns, 40 F. 33; Minnick v. Insurance Co., Id. 369; Cooper v. Railway Co., 42 F. 697; Brodhead v. Shoemaker, 44 F. 518; Walcott v. Watson, 46 F. 529; Smith v. Lumber Co., Id. 819; Carpenter v. Railway Co., 47 F. 535; Adelbert College v. Toledo, etc., Ry. Co., Id. 836.

It is further insisted that the verified petition does not state facts sufficient to constitute a prima facie case for removal. No good purpose would be observed by setting...