Stanbrough v. Cook

• Decision Date: 20 April 1889
• Citation: 38 F. 369
• Parties: STANBROUGH v. COOK et al.
• Court: U.S. District Court — Northern District of Iowa

38 F. 369

STANBROUGH v. COOK et al.

United States Circuit Court, N.D. Iowa, Eastern Division.

April 20, 1889

Calvin Yoran and Powers & Lacy, for plaintiff.

Henderson Hurd, Daniels & Kiesel, for defendants.

SHIRAS J.

At the March term, 1889, of the district court of Delaware county Iowa, a petition was filed by the plaintiff, R. M Stanbrough, in which he claimed to be entitled to the immediate possession of certain real estate situated in Delaware county, as the owner thereof in fee-simple; that Edward Cook was in possession thereof as a tenant; that he had converted to his own use growing crops on the property and had damaged the buildings; that for the use of the property and the damages named the defendant Cook was indebted to plaintiff in the sum of $1,000; that the said Cook has been in the occupancy of the premises since the 15th day of September, 1888, claiming to hold the same as tenant of one or more of his co-defendants. The parties other than Cook named as defendants are Susan Daniels, Lucy Daniels, and the firm of Henderson, Hurd, Daniels & Kiesel. The prayer is for a judgment awarding the immediate possession of the realty to the plaintiff and for $1,000 damages against the defendant Cook, the same to be binding upon such of the co-defendants as are alleged by said Cook or by their own pleadings to be the landlord of said Cook. Under the provisions of the Code of Iowa, the petition is in form sufficient to enable the plaintiff to establish, if the facts justify it, the validity of his title against all the defendants, to obtain an order and writ to put him into the immediate possession of the premises, and to a judgment for damages against the defendant Cook. When the action was brought, and at all times since then, the plaintiff was a citizen of the state of New York, the defendants Cook and Henderson, Hurd, Daniels & Kiesel were and are citizens of Iowa, and the defendants Susan and Lucy Daniels were and are citizens of Vermont. The realty consists of about 234 acres of land and the improvements thereon, of a value exceeding $2,000. At the March term of the state court the defendant Edward Cook filed a petition and bond asking a removal of the cause into this court. A transcript of the record having been filed, the plaintiff now moves for an order remanding the case on the ground that the right of removal did not exist in favor of the case on the ground that the right of removal did not exist in favor of the defendant Cook, and that this court is without jurisdiction. The right of removal is claimed under the clause of section 2 of the act of congress approved August 13, 1888, which provides that, 'and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district.'

The most important question presented for decision is whether under this clause, under any circumstances, a removal can be had at the instance of a defendant residing in the state wherein the suit is brought. The contention on part of plaintiff is that the right of removal is restricted to non-resident defendants, even if it be true that the suit is one within the original jurisdiction of the United States circuit court, and embracing a controversy wholly between citizens of different states separable from the other issues therein. Section 2 of the act defines four general classes of removable cases: (1) Suits of a civil nature, at law or in equity, wherein original jurisdiction would exist in the United States circuit court under the provisions of section 1 of the act, by reason of their arising under the constitution, laws, or treaties of the United States, and involving over $2,000, are removable by the defendant or defendants. (2) Suits of a civil nature, at law or in equity, wherein original jurisdiction would exist in the United States circuit court under the provisions of section 1 of the act, by reason of the controversy being between citizens of different states, and involving over $2,000, or by reason of its being a controversy between citizens of the same state claiming lands under grants from different states, or by reason of its being a controversy between citizens of a state and foreign states, citizens, or subjects, and involving over $2,000, are removable by the defendant or defendants therein, if they are non-residents of the state wherein suit is brought in the state court. (3) Suits of a civil nature, at law or in equity, coming within the original jurisdiction of the United States circuit court for any of the reasons enumerated in the two preceding paragraphs, and which include a controversy which is wholly between citizens of different states, and which can be fully determined as between them, are removable by either one or more of the defendants actually interested in such controversy. (4) Suits in which there is a controversy between a citizen of the state wherein the suit is brought and a citizen of another state may be removed on the ground of prejudice or local influence by a defendant, provided he is a citizen of a state other than that in which the suit is pending.

In the first clause of section 2 covering the first classification given above the declaration is that the suit may be removed by the defendant or defendants. In the second clause of the section covering the second classification above given the declaration is that the suit may be removed by the defendant or defendants, being non-residents of the state wherein suit is pending. In the third clause of the section covering the third classification above given the declaration is that any one or more of the defendants actually interested in such controversy may remove the suit. In the fourth clause of the section covering the fourth classification above given the declaration is that any defendant, being a citizen of another state than that wherein suit is pending, may remove the same. So far as the express language of the clauses are concerned, in the first and third the right of removal is conferred on the defendant. In the second it is conferred on the defendant provided he is a non-resident of the state wherein suit is pending, which would include defendants who are citizens of other states, aliens, foreign subjects, and foreign states, and in the fourth the right of removal is conferred on the defendant provided he is a citizen of another state.

According to the argument of plaintiff the court should hold that in cases coming under the third classification above given, and the third clause of the section, the right of removal cannot be invoked by a defendant, unless he is a non-resident of the state wherein the suit is pending. It cannot be held that such is the meaning of the clause unless the court interpolates the words, 'being a non-resident,' into the clause of the section in question. In the next case perhaps the contention would be that the court should...