Chambers v. Holland

11 F. 209, 3 McCrary's Cir. Ct. Rpts 538, 1882 U.S. App. LEXIS 2383

• Court: District Court, E.D. Missouri
• Decided: April 4, 1882
• Status: Published

Opinions

McCrary, C. J.

It is understood that this is an attempt to remove a part of the ease from the state court. One defendant seeks to remove the cause so far as he is concerned, leaving the case as against the other defendant to go on in the state court. This is attempted under the provisions of section 639 of the Revised Statutes of the United States, and the proceeding is sought to be upheld under that section upon the ground that there is a controversy between the defendant removing and the plaintiff (citizens of different states) which can be finally determined “without the presence of the other defendant,” who is a citizen of this state. This is denied; but without considering the question whether it be so or not, let us inquire whether, as the law now stands, the case can under any circumstances be split, and one portion tried here and the other in the state court. This inquiry involves a decision of the question whether the second section of the act of March 3, 1875, repeals or modifies section 639 of the Revised Statutes. That section, among other things, provides as follows:

“When the suit is against an alien and a citizen of the state wherein it is brought, or is by a citizen of such state against a citizen of the same and a citizen of another state, it may be removed, as against said alien or citizen of another state, upon the petition of such defendant filed at any time before the trial or final hearing of the cause, if, so far as it relates to him, it is brought for the purpose of reinstating or enjoining him, or is a suit in which there can be a final determination of the controversy, so far as concerns him, without the presence of the other defendants as parties in the cause.”

This statute undoubtedly authorizes the removal of parts of a cause, and if it remains in full force the present cause, so far as it concerns the defendant removing, is properly here; assuming, of course, that in so far as it concerns him it can be heard and determined without the presence of his co-defendants. But the latter act of March 3, 1875, deals with the same subject, and the question is whether it does not supersede and modify the entire statute; at least, so far as to require the removal of the whole case, if any part of it is removed. Section 2 of that act provides for the removal of causes involving the sum or value of $500 or more, and “in which there shall bo a controversy between citizens of different states,” and then proceeds as follows:

“And when, in any suit mentioned in this section, there shall bo 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 plaintiffs or defendants actually interested in such controversy may remove said suit to the circuit court of the United States for the proper district.”

We italicise the words “said suit,” in the above quotation, because we think they were intended to provide for the removal of the whole suit, and not a part of it. The provision manifestly applies to the same class of cases described in the act of 1866, and embodied in section 639, Rev. St., above quoted. It may well bo supposed that the evils growing out of the practice of attempting to try different parts of the same suit in different forms led congress to so change the statute as to put an end to that practice. For some purposes the act of 1866 may remain in force, but in so far as it authorizes the severance of causes in the state court, and the transfer of a part to the federal court for trial, it is superseded by the act of 1875. Motion sustained.