Glenn v. Walker

27 F. 577, 1886 U.S. App. LEXIS 2132

• Court: U.S. Circuit Court for the District of Western Virginia
• Decided: March 22, 1886
• Status: Published

Opinion

Paul, J.

It is unnecessary for the court to discuss at length, or to review in detail, the various propositions presented by counsel, and so ably argued during the consideration of this motion. The important questions raised here have all been settled by precedents that leave this court without embarrassment as to the decision it must render. The discussion here, as in the cases quoted in argument, turns chiefly upon the construction to be given to sections 1 and 2 of the act of congress of March 3, 1875, corresponding in the main to the provisions of sections 11 and 12 of the judiciary act of 1789.

It is contended by counsel for the defendants that sections 1 and 2 of the act of March 3, 1875, are to be regarded in pari materia, and are to be construed together; and that when thus construed they deny to this court jurisdiction of a cause which could not originally have been brought in this court,, but which has been brought in a state court, and removed into this court under section 2 of said act; while counsel for the plaintiffs argue that sections 1 and 2 of said act must be construed separately, and that, when thus construed, these cases do not fall within that provision of section 1, act 1875, which says:

“JSTor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in case of promissory notes negotiable by the law-merchant, and bills of exchange.”

The decisions under the judiciary act of 1789, in Bushnell v. Kennedy, 9 Wall. 387; under the local prejudice act of 1867, in City of Lexington v. Butler, 14 Wall. 289; under the act of March 3, 1875, in Claflin v. Insurance Co., 110 U. S. 81, S. C. 3 Sup. Ct. Rep. 507, —all decide against the proposition that sections 1 and 2 of the act of 1875 must be construed together, and that, when thus construed, the restriction upon the commencement of suits contained in section 1 applies to the removal of suits under section 2. The argument of counsel for the defendants, supported chiefly by the able opinions of Judges McGrary and Bunn, however persuasive it might be were this a case of first impression, cannot prevail against the well-settled decisions of the United States supreme court. The decisions of the circuit courts referred to were rendered prior to the decision of the supreme court in Glaflin v. Insurance Go. This decision is conclusive of this question. It leaves this court but one course to pursue.

The motion to remand must be overruled.