Hodgkins v. Hayes

9 Abb. Pr. 87

• Court: New York Court of Common Pleas
• Decided: January 15, 1869
• Status: Published

Opinion

Beady, J.

The act of Congress passed July 27, 1866, in reference to the removal of actions from the State to the Federal courts, is very comprehensive but peculiar in its terms. It is so broad in its' provisions, a feature doubtless occasioned by the unsettled condition of some parts of the republic, that it should be subjected to close scrutiny, and applied with great care in this State, where the courts are equal to all the emergencies that may arise, for the protection of the citizen and the ample administration of justice.

Guided by such a rule of construction, I think it should be held that it applies only to actions in which there is but one defendant who is a non-resident, and who is restrained by injunction or other process, and to cases in which there is a non-resident defendant joined with others who are residents, as to whom it clearly and unquestionably appears that a final determination of the action, and the issues and rights involved therein, can be had, after its removal, without the presence of the other defendants.

It does not thus clearly appear in this case, as to the defendant who applies for the removal. The act contemplates a case, not where there can be a final determination witnout the presence of the party who is a non-resident, but a final determination as to such party without the' presence of the other defendants. This case does not present the combination of concurring elements which is required, and is therefore not within the statute.

Motion denied.