Walcott v. Watson

• Decision Date: 01 June 1891
• Citation: 46 F. 529
• Parties: WALCOTT v. WATSON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

46 F. 529

WALCOTT v. WATSON et al.

United States Circuit Court, D. Nevada.

June 1, 1891

A. C Ellis, for plaintiff.

Thomas Wren, for defendants.

HAWLEY J.

This suit was originally brought in the state district court in December, 1889, by the plaintiff, a citizen of the state of California, against the defendants, citizens of the state of Nevada, to recover an undivided one-half interest in certain property situate in White Pine county, and for an accounting etc. The defendant A. R. Watson, on the 9th of February 1890, filed an answer denying the material allegations of the complaint, and alleging that the claims of plaintiff were 'without right, and fraudulent, except her claim to one-half interest in the claims known as 'copper claims.' ' For further answer, by way of cross-complaint, and as a counter-claim to plaintiff's cause of action, the defendant alleges the existence of an agreement between the parties plaintiff and defendant relative to the 'copper claims,' and a breach thereof on the part of the plaintiff, and claims damages therefor in the sum of $40,000. On the 2d of March, 1890, the plaintiff filed a petition, with the requisite bond, in the district court of the state where the suit was commenced, for the removal of the cause to the United States circuit court. The district judge held that the petition was not filed in time and set the case for trial. Subsequently, proceedings were instituted in the supreme court of Nevada for a writ of prohibition to prohibit the trial of the cause in the state court. This writ was denied. Walcott v. Wells, 24 P. 367. Thereafter the cause was again set for trial in the state court for the 4th of August, 1890. On the 15th of July, 1890, the plaintiff filed her petition and affidavits in this court to remove the cause from the state court upon the ground of 'prejudice and local influence,' under the provisions of the act of congress to regulate the removal of causes, 25 U.S.St. 435. Judge KNOWLES of Montana, then presiding as judge of this court, thereupon made an order removing the cause.

This order was regularly served upon the district judge and clerk of the state court, and, notwithstanding this order, in utter disregard of said proceedings, and without the presence of Mrs. Walcott or her attorneys, the district judge proceeded to try said cause, and render judgment for defendants. After the removal of the cause to this court a reformed bill of complaint was filed, to which A. R. Watson in due time interposed a demurrer, contesting the jurisdiction of this court. Several preliminary motions have been made by the respective parties touching the sufficiency of the record. The various motions, the demurrer to the complaint, and a motion to remand were argued and submitted by consent of the court at the same time.

The important question concerning the validity of the removal of this case is whether or not the plaintiff can, by reason of the counter-claim set up in the answer, be treated as a 'defendant,' within the spirit, intent, and meaning of the act of congress before referred to, which reads as follows:

'And 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.'

In Carson v. Holtzclaw, 39 F. 578, it was held that a non-resident plaintiff, suing in the state court, against whom a counter-claim is brought, is a 'defendant,' within the provisions of said act. It was upon the authority of that case that Judge KNOWLES made the order of removal in this case. Clarkson v. Manson, 4 Fed.Rep. 260, is also an authority in favor of the removal. The presiding judge having acted, and his action being supported by respectable authority, it is questionable, to say the least, whether his ruling should be interfered with at this time, even if the present judge doubted its correctness. But my opinion is, notwithstanding the decision of the supreme court of the United States in West v. City of Aurora, 6 Wall. 141, upon which defendant's counsel rely to support their motion to remand the case, that his ruling was correct. The counter-claim set up in the answer is a cause of action in favor of the defendant, upon which he might have sued the plaintiff, and obtained affirmative relief. By filing the counter-claim to the plaintiff's action the defendant becomes an affirmative actor. The counter-claim creates a controversy in which the attitude of the respective parties is changed. When the plaintiff brought this suit, she chose the forum of the state court to litigate the matters presented by her complaint. When the defendant filed his answer it presented a new and independent issue, and was not wholly in the nature of a defensive plea, as in West v. City of Aurora. Moreover, the facts in that case were dissimilar from the facts of this case, and the statute of this state in relation to counter-claims is, in some respects, essentially different from the provisions of the Code of Indiana upon which that decision was based. See Gen. St. Nev. Sec. 3068.

2. with regard to the question as to how the prejudice or local influence warranting the removal of a cause of action from the state to the United States court may be 'made to appear,' the authorities are by no means uniform. The present state of the authorities leaves it optional for each judge to pursue any course which to his mind may be deemed proper. It has been decided in several cases that a defendant can remove a cause by filing an affidavit that he has reason to believe that from prejudice and local influence he will not be able to obtain justice in the state courts, and that his affidavit, if deemed sufficient to authorize the court to act, cannot be traversed or contradicted by the opposite party. Neale v. Foster, 31 F. 53; Fisk v Henarie, 32 F. 417, 35 F. 230; Hills v. Railroad Co., 33 F. 81; Whelan v. Railroad Co., 35 F. 849; Huskins v. Railway Co., 37 F. 504; Cooper v. Railroad Co., 42 F. 697; Brodhead v. Shoemaker, 44 F. 518. In others it is held that the defendant must state in his affidavits the facts which show the existence of the...