HAWLEY, District Judge
(orally). Without attempting to review the decision of the state court upon the points decided by it, I shall proceed to examine the question whether petitioner is entitled to remove the cause on account of the local influences or prejudice, as set forth in the petition filed in this court.
1. The petition for removal upon this ground must be made in this court. The act of 1887-88 provides that, where a suit is brought in any state court, “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.”
2. There is a great diversity of opinion as to how the local influence or prejudice which would authorize a court to remove the cause should be made to appear; but it may safely be said, as was stated in lie Pennsylvania Co., 137 U. S. 457, 11 Sup. Ct. 143, that “the amount and manner of proof required in each case must be left [488]*488to the discretion of the court itself.” In Walcott v. Watson, 46 Fed. 529, 531, this court, in reviewing this question, said:
“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 aro 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 he deemed proper. It has been decided in several cases that a defenuant 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 Fed. 53; Fisk v. Henarie, 32 Fed. 417, 35 Fed. 230; Hills v. Railway Co., 33 Fed. 81; Whelan v. Railway Co., 35 Fed. 849; Huskins v. Railway Co., 37 Fed. 504; Cooper v. Railway Co., 42 Fed. 697; Brodhead v. Shoemaker, 44 Fed. 518. In others it is held that the defendant must state in his affidavits the facts which show the existence of the prejudice and local influence, and that the opposite party is entitled to a hearing. Short v. Railroad Co., 33 Fed. 114, 34 Fed. 225; Malone v. Railroad Co., 35 Fed. 625; Southworth v. Reid, 36 Fed. 451; Dennison v. Brown, 38 Fed. 535; Amy v. Manning, Id. 536, 868; Goldworthy v. Railway Co., Id. 769.”
I was then and still am of the opinion that all applications for a removal upon this ground should be made upon notice to the opposite party, clearly specifying upon what proofs the petitioner would rely, — whether solely upon the facts set out in a verified petition, or upon affidavits, copies of whicli should be served and reasonable time given to the opposite party to file counter affidavits if so desired. A compliance with this rale would certainly have the effect of enabling the court to act more advisedly in the premises. In addition to the authorities cited in Walcott v. Watson, supra, see Herndon v. Railroad Co., 73 Fed. 307. If the opposite party is entitled to a hearing by filing counter affidavits, then the sufficiency, as well as the truth or falsity, of the facts set out in the petition, should be heard at the same time. The right of.removal ought not to be subjected to hearings by “piecemeal.” The opposite party having received notice that such an application would be made, and having knowledge of the grounds upon which it would be made, should come prepared to disprove the facts if he can. If he relies solely upon the insufficiency of the facts alleged in the petition, and submits that matter to the court, he should be compelled to abide by the decision without further hearing.
In Adelbert College v. Toledo, etc., Ry. Co., 47 Fed. 836, 843, the court said:
“It having been made to appear to this court * * * that from prejudice or local influence the petitioners for removal could or would not be able to obtain justice in the state courts, and the order for the removal of the suit having been then made, it would not he proper now to receive or consider counter affidavi* •• denying the existence of any such prejudice or local influence, and thus raise an issue on the fact. The court, in the exercise of a legal discretion, having been satisfied with the prima facie showing made by the petitions for removal and accompanying affidavits, its action in ordering1 the removal cannot he properly called in question, or be set aside thereafter upon affidavits disputing the fact of the existence of prejudice or local influence. There is no requirement in the statute that the opposing side shall have notice of the application to remove on that ground, and he allowed an opportunity to he heard thereon. It would, perhaps, he the better practice to give the opposite party notice of the application to rcunve before action thereon by this court; hut that is a matter resting in the discretion of the court, aud not a matter of right. It would, however, be a most anomalous pro[489]*489reeding to have an issue made up and tried as to the existence of prejudice or local influence after it had been mack? ‘to ajtpear to this court,’ in a legal way, that from prejudice or local influence the party applying for removal would not he able to obtain justice in the state court or courts, and after the removal had been ordered.
Whatever objections might be urged to this rule when the application is matte without notice, there certainly can be none urged to its application to a case like the present, where the opposing party has had notice, and contests the removal solely upon the grounds of the insufficiency of the petition.
3. It is claimed that all of the defendants except petitioner being residents of the same state as the plaintiffs is fatal to petitioner’s right to remove the case. Prior to the act of 1887-88, no suit could be removed on the grounds of local prejudice unless all the parties to the suit on one side were citizens of a different state from those on the other side. Jefferson v. Driver, 117 U. S. 272, 6 Sup. Ct. 729; Iron Co. v. Ashburn, 118 U. S. 54, 6 Sup. Ct. 929; Hancock v. Holbrook, 119 U. S. 586, 7 Sup. Ct. 341; Young v. Parker’s Adm’r, 132 U. S. 267, 10 Sup. Ct. 75; Rosenthal v. Coates, 148 U. S. 142, 146, 13 Snp. Ct. 576. But under the provisions of the act of 1887-88, in order to entitle a defendant, who is sued in a state court of which he is not a citizen, to remove the cause to the circuit court of the United States, it is not necessary, where all the plaintiffs are citizens of the state where the suit is brought, that all of the defendants should be citizens of another state, or that any of his co-defendants should join with him in the petition for removal. Any defendant possessing the requisite citizenship may remove the cause, upon a proper showing of facts. Whelan v.
Free access — add to your briefcase to read the full text and ask questions with AI
HAWLEY, District Judge
(orally). Without attempting to review the decision of the state court upon the points decided by it, I shall proceed to examine the question whether petitioner is entitled to remove the cause on account of the local influences or prejudice, as set forth in the petition filed in this court.
1. The petition for removal upon this ground must be made in this court. The act of 1887-88 provides that, where a suit is brought in any state court, “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.”
2. There is a great diversity of opinion as to how the local influence or prejudice which would authorize a court to remove the cause should be made to appear; but it may safely be said, as was stated in lie Pennsylvania Co., 137 U. S. 457, 11 Sup. Ct. 143, that “the amount and manner of proof required in each case must be left [488]*488to the discretion of the court itself.” In Walcott v. Watson, 46 Fed. 529, 531, this court, in reviewing this question, said:
“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 aro 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 he deemed proper. It has been decided in several cases that a defenuant 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 Fed. 53; Fisk v. Henarie, 32 Fed. 417, 35 Fed. 230; Hills v. Railway Co., 33 Fed. 81; Whelan v. Railway Co., 35 Fed. 849; Huskins v. Railway Co., 37 Fed. 504; Cooper v. Railway Co., 42 Fed. 697; Brodhead v. Shoemaker, 44 Fed. 518. In others it is held that the defendant must state in his affidavits the facts which show the existence of the prejudice and local influence, and that the opposite party is entitled to a hearing. Short v. Railroad Co., 33 Fed. 114, 34 Fed. 225; Malone v. Railroad Co., 35 Fed. 625; Southworth v. Reid, 36 Fed. 451; Dennison v. Brown, 38 Fed. 535; Amy v. Manning, Id. 536, 868; Goldworthy v. Railway Co., Id. 769.”
I was then and still am of the opinion that all applications for a removal upon this ground should be made upon notice to the opposite party, clearly specifying upon what proofs the petitioner would rely, — whether solely upon the facts set out in a verified petition, or upon affidavits, copies of whicli should be served and reasonable time given to the opposite party to file counter affidavits if so desired. A compliance with this rale would certainly have the effect of enabling the court to act more advisedly in the premises. In addition to the authorities cited in Walcott v. Watson, supra, see Herndon v. Railroad Co., 73 Fed. 307. If the opposite party is entitled to a hearing by filing counter affidavits, then the sufficiency, as well as the truth or falsity, of the facts set out in the petition, should be heard at the same time. The right of.removal ought not to be subjected to hearings by “piecemeal.” The opposite party having received notice that such an application would be made, and having knowledge of the grounds upon which it would be made, should come prepared to disprove the facts if he can. If he relies solely upon the insufficiency of the facts alleged in the petition, and submits that matter to the court, he should be compelled to abide by the decision without further hearing.
In Adelbert College v. Toledo, etc., Ry. Co., 47 Fed. 836, 843, the court said:
“It having been made to appear to this court * * * that from prejudice or local influence the petitioners for removal could or would not be able to obtain justice in the state courts, and the order for the removal of the suit having been then made, it would not he proper now to receive or consider counter affidavi* •• denying the existence of any such prejudice or local influence, and thus raise an issue on the fact. The court, in the exercise of a legal discretion, having been satisfied with the prima facie showing made by the petitions for removal and accompanying affidavits, its action in ordering1 the removal cannot he properly called in question, or be set aside thereafter upon affidavits disputing the fact of the existence of prejudice or local influence. There is no requirement in the statute that the opposing side shall have notice of the application to remove on that ground, and he allowed an opportunity to he heard thereon. It would, perhaps, he the better practice to give the opposite party notice of the application to rcunve before action thereon by this court; hut that is a matter resting in the discretion of the court, aud not a matter of right. It would, however, be a most anomalous pro[489]*489reeding to have an issue made up and tried as to the existence of prejudice or local influence after it had been mack? ‘to ajtpear to this court,’ in a legal way, that from prejudice or local influence the party applying for removal would not he able to obtain justice in the state court or courts, and after the removal had been ordered.
Whatever objections might be urged to this rule when the application is matte without notice, there certainly can be none urged to its application to a case like the present, where the opposing party has had notice, and contests the removal solely upon the grounds of the insufficiency of the petition.
3. It is claimed that all of the defendants except petitioner being residents of the same state as the plaintiffs is fatal to petitioner’s right to remove the case. Prior to the act of 1887-88, no suit could be removed on the grounds of local prejudice unless all the parties to the suit on one side were citizens of a different state from those on the other side. Jefferson v. Driver, 117 U. S. 272, 6 Sup. Ct. 729; Iron Co. v. Ashburn, 118 U. S. 54, 6 Sup. Ct. 929; Hancock v. Holbrook, 119 U. S. 586, 7 Sup. Ct. 341; Young v. Parker’s Adm’r, 132 U. S. 267, 10 Sup. Ct. 75; Rosenthal v. Coates, 148 U. S. 142, 146, 13 Snp. Ct. 576. But under the provisions of the act of 1887-88, in order to entitle a defendant, who is sued in a state court of which he is not a citizen, to remove the cause to the circuit court of the United States, it is not necessary, where all the plaintiffs are citizens of the state where the suit is brought, that all of the defendants should be citizens of another state, or that any of his co-defendants should join with him in the petition for removal. Any defendant possessing the requisite citizenship may remove the cause, upon a proper showing of facts. Whelan v. Railway Co., 35 Fed. 849; Adelbert College v. Toledo, etc., Ry. Co., 47 Fed. 836, 845; Hall v. Agricultural Works, 48 Fed. 599, 604; City of Detroit v. Detroit City Ry. Co., 54 Fed. 1, 5; Haire v. Rome R. Co., 57 Fed. 321; Jackson v. Pearson, 60 Fed. 113, 126.
It is claimed that the affidavit to the petition for removal must be made by the petitioner, and cannot be made by his attorney in fact. This position cannot be sustained. Duff v. Duff, 31 Fed. 772, cited in its support, refers solely to the provisions of the act of 1867, and has no application whatever to the provisions of the act of 1887-88, which in many respects is. essentially different from the prior acts. An examination of that decision clearly shows that Judge Sawyer based his opinion entirely upon the language of the statute that the case might be removed on the petition of the defendant, provided “he makes and files in said state court an affidavit, stating that he has reason to believe, and does believe, that from prejudice or local influence he will not be able to obtain justice in such state court.” Under such a provision the law requires the affidavit to be made by the petitioner. But there is no such requirement in the act of 1887-88. Under this act it can “bo made to appear” to the satisfaction of the'court by the petition and affidavit of the petitioner, or by the affidavit of any other person or persons having knowledge of all the facts. City of Detroit v. Detroit City Ry. Co., 54 Fed. 1, 12. In the present case it appears that petitioner is in Europe; that the person verifying the petition resides at De [490]*490Lámar, in Lincoln comity, Lev.; that he is familiar with all the facts concerning the suit, and especially with the state of feeling of the-citizens-in that community with reference to the subject-matter of the suit. Owing to the absence of petitioner from the state, it is self-evident that Mr. Cohen, his attorney in fact, would have a better knowledge as to the existence of the local influence or prejudice, and his affidavit in this respect would naturally be more satisfactory than that of the petitioner himself.
The facts as to the existence of the local influence and prejudice, against petitioner is stated in clear, strong, direct, and positive terms. The requirements of the law in this respect have been fully complied, with. But.it is argued that admitting that the averments in the petition as to the existence of local influence and prejudice in Lincoln county and in the adjoining counties are true, yet this court should fake judicial knowledge that there are four judicial districts in this state; that it is not true that the local prejudice exists in the different judicial districts, although so stated in the petition, and strong reasons given therefor; and that great hardship Would be imposed upon the plaintiffs by the removal of the cause to this court. In reply to this it is only necessary to say that if it has been 'clearly made to appear that such local influence and prejudice does exist; as stated in the petition, the question as to the hardship upon the parties, if any, cannot be considered by this court. The duty of courts, ends by giving to the various provisions of the statute a proper lfegal construction. They have nothing to do with the Wisdom, .policy, or. expediency of the law. Those matters were settled by the passage of the act. Under the laws of the state of Levada;, all civil actions must be tried in the county where the cause arose, of in the county where the defendants, or either of them, reside; Subject to a change of the place of trial, among other grounds, "when there is reason to believe that an impartial trial cannot be had therein.” Gen. St. Lev. §§ 3040, 3043. There is no certainty' that the change of the place of trial could be taken by the defendants to any other state court or to anv other judicial district.
Petitioner has in all respects made out such a case as makes it the duty of this court, in conformity with the provisions of the existing law upon the subject, to order the cause to be removed to this court.
It is so ordered.