The Weed Sewing Mach. Co. v. Smith

• Decision Date: 30 September 1873
• Citation: 71 Ill. 204,1873 WL 8717
• Parties: THE WEED SEWING MACHINE COMPANYv.SARAH G. SMITH.
• Court: Illinois Supreme Court

71 Ill. 204

1873 WL 8717 (Ill.)

THE WEED SEWING MACHINE COMPANY

v.SARAH G. SMITH.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

Messrs. JOHNSON & HOPKINS, for the appellant.

Messrs. MCCULLOCH & STEVENS, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, commenced in the circuit court of Peoria county, by Sarah G. Smith against The Weed Sewing Machine Company. A trial was had before a jury, and the plaintiff obtained a verdict for $381.40, upon which the court rendered judgment. The defendant brings the case here, and insists upon a reversal of the judgment upon two grounds:

First--Because the circuit court overruled the motion of defendant to remove the cause into the circuit court of the United States, for the Northern District of Illinois.

Second--For the reason that the verdict is contrary to the evidence.

These positions, taken by the defendant, we will consider, in the order in which they are made.

The act of Congress of March 2, 1867, under which the motion was made to transfer the cause to the circuit court of the United States, declares:

“That where a suit is now pending or may hereafter be 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, and the matter in dispute exceeds the sum of $500, exclusive of costs, such citizen of ??other State, whether he be plaintiff or defendant, if he will make and file in such State court an affidavit, stating that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court, may, at any time before the final hearing or trial of the suit, file a petition in such State court for the removal of the suit into the next circuit court of the United States to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of all process, pleadings, depositions, testimony, and other proceedings in said suit, and doing such other appropriate acts as, by the act to which this is amendatory, are required to be done upon the removal of suits into the United States Court; and it shall thereupon be the duty of the State court to accept the surety, and proceed no further in the suit.”

This suit was instituted August 21, 1871. On the 9th of September, 1871, defendant filed a plea of the general issue. On the 9th of November, 1872, the petition and affidavit were filed to remove the cause from the State to the federal court.

When the defendant filed this petition and affidavit, the plaintiff filed a disclaimer of all damages above $475, and entered a motion and obtained leave to amend her declaration so that it would show her cause of action was $475. After the declaration was thus amended, the court denied the application of the defendant to transfer the cause.

It is not necessary, in disposing of this case, to decide whether the plaintiff, after the filing of a petition by defendant to remove the cause from the State court, had the right to defeat the application by an amendment of her pleadings, reducing her claim to less than $500.

The material question to be determined is, whether the petition and affidavit filed were...